Standstill. (a) During the Standstill Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to: (i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding; (ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member; (iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock; (iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities; (v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company; (vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries; (vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board; (viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii); (ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or (x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2. (b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply). (c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board. (d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 3 contracts
Sources: Stockholders’ Agreement (Elevation Partners, L.P.), Stockholders' Agreement (Palm Inc), Securities Purchase Agreement (Elevation Partners, L.P.)
Standstill. (a) During Until the Standstill Period, except as required in connection with earliest to occur of (A) the execution, delivery or performance of this Agreement and the consummation tenth anniversary of the transactions purchase of the Senior Preferred Stock pursuant to the Series C Preferred Stock Purchase Agreement, (B) the Investor Stockholders date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and (ii) less than 10% of the Actual Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders; provided that the Shareholders at such time are entitled to designate not more than one director pursuant to Article 3 hereof, and (C) termination under Section 2.2 (such period, the "Standstill Period") (provided that the Standstill Period shall end (x) with respect to the DLJ Shareholders, on the date on which the DLJ Shareholders no longer own any Conversion Shares, and (y) with respect to the Greenwich Street Shareholders, on the date on which the Greenwich Street Shareholders no longer own any any Conversion Shares), each Shareholder will not, and the Investor Stockholders shall ensure that none will cause each of the Elevation Entities its Affiliates (other than Exempt Affiliates) not to, directly or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person toindirectly:
(i) except acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Voting Securities or voting rights or direct or indirect rights or options to acquire any Voting Securities of the Company or any of its Affiliates other than (xA) an acquisition as a result of the Beneficial Ownership of a stock split, stock dividend or exercise of any Rightssimilar recapitalization, (yB) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number acquisition of shares of Common Stock issuable upon conversion or exercise which are subject to the Exchange Agreement, (C) with the prior written consent of the Series B Preferred Stockchairman of the Board of Directors and the chief executive officer of the Company, Series C Preferred Stock acquisitions by the Apollo/Blackstone Shareholders of up to a collective aggregate amount of 3,000,000 shares (as such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or Warrants any other recapitalization of the Company and as a result of reduced to reflect any anti-dilution or other terms thereof or the exercise of rights such acquisitions pursuant to Section 4.1 hereof and (z2.1(a)(i)(C) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if anyof the Original Agreement) of Common Stock, (AD) acquire stock options or similar rights granted by the Company to an Affiliate of such Shareholder as compensation for performance as a director or officer of the Company or its subsidiaries (and any Economic Right or Beneficial Ownership of Equity Securities shares issuable upon exercise thereof), (E) transfers between such Shareholder and Related Transferees as permitted under Section 4.1(f) or (BF) authorize or make a tender offerany rights which are granted to all shareholders of the Company (and any shares issuable upon exercise thereof); provided, exchange offer or other offer or proposalhowever, whether oral or written, to acquire Equity Securities, in each case, that if the effect Shareholders or any of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of in good faith inadvertently acquire not more than 500,000 shares of Common Stock Beneficially Owned in violation of these provisions and within 15 days after the first date on which the Shareholders have actual knowledge (including by way of written notice given by the Investor Stockholders and Company) that a violation has occurred Shareholders or any of their Affiliates, there Affiliates shall be excluded from such calculation have transferred any shares of Common Stock Beneficially Owned held in violation of these provisions to unrelated third parties so that the Shareholders and their Affiliates no longer beneficially own any such shares or have any agreement or understanding relating to such shares, this Section 2.1 shall be deemed to not have been violated; and provided, further, that no violation of this provision shall be deemed to have occurred by Affiliates reason of the Investor Stockholders that are not also Beneficially Owned indirect acquisition of beneficial ownership of securities resulting from (x) investments in investment funds as to which no Shareholder or Affiliate thereof has control or power to control with respect to voting or investment decisions or (y) acquisitions of securities by the Investor Stockholders, up a limited partner in any Shareholder or Affiliates thereof as to a maximum number of shares of Common Stock that will be excluded pursuant which limited partner no Shareholder or its Affiliates has control or power to this clause equal to one percent (1%) of the Diluted Common Shares Outstandingcontrol;
(ii) (A) solicit make or participate in cause to be made any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than proposal for a Reorganization Transaction except for Dispositions in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a memberArticle 4;
(iii) deposit form, join or in any Voting Stock way participate in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person Group with respect to any securities of the voting Company or its Affiliates, other than with other Shareholders or Affiliates of such any Shareholder; provided, however, that in the case of securities other than Voting StockSecurities, Shareholders may participate in a Group with respect thereto with the prior approval of a majority of the entire Board of Directors (which approval is requested in a manner which does not require disclosure publicly or to any third party);
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other groupmake, or otherwise act in concert with any third Person for way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(vExchange Act) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or its Affiliates, or communicate with, seek to advise, encourage or influence any Person, in any manner, with respect to the voting of, securities of the Company or its SubsidiariesAffiliates, or become a "participant" in any "election contest" (as those terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or its Affiliates (other than non-public communications with other Shareholders or Affiliates of any Shareholder which would not require public disclosure by any Person or solicitation of proxies in support of the election of Shareholder Designees, Management Directors and Unaffiliated Directors nominated by the Board of Directors in accordance with Section 3.1 hereof in circumstances in which a third party is soliciting parties for the election of nominees not nominated by the Board of Directors);
(v) initiate, propose or, except with the prior approval of a majority of the entire Board of Directors (which approval is requested in a manner which does not require disclosure publicly or to any third parties) otherwise solicit stockholders for the approval of one or more stockholder proposals with respect to the Company or its Affiliates or induce or attempt to induce any other Person to initiate any stockholder proposal or seek election to or seek to place a representative on the Board of Directors of the Company (except pursuant to Section 3.1 of this Agreement) or its Affiliates or seek the removal of any member of the Board of Directors of the Company or its Affiliates (for this purpose, the actions of the Shareholder Designees in communicating (without public disclosure or disclosure to third parties) with the Board of Directors in their capacity as directors of the Company, and non-public communication by a Shareholder with other Shareholders or Affiliates of any Shareholder which would not require public disclosure by any Person, shall not be deemed to be in contravention of this paragraph (v));
(vi) in any manner, agree, attempt, seek or propose (other than making any request for permission with respect thereto which would not require disclosure publicly or to any third party) to deposit any securities of the Company or its Affiliates in any voting trust or similar arrangement or to subject any securities of the Company or its Affiliates to any other voting or proxy agreement, arrangement or understanding (other than any such agreements or understandings with other Shareholders or Affiliates of any Shareholder);
(vii) authorize offer, sell or take transfer any action Voting Securities or rights to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company receive Voting Securities except for Dispositions in accordance with the recommendation of the BoardArticle 4;
(viii) disclose any intention, plan or arrangement, or make any public announcement (or request permission to make any such announcement other than making any request for permission which would not require disclosure publicly or to any third party), or induce any other Person to take any action, inconsistent with the foregoing;
(ix) enter into any negotiations, arrangements or understandings with any third party with respect to any of the foregoing;
(x) advise, assist or encourage or finance (or assist or arrange financing to or for) any other Person in connection with any of the foregoing;
(xi) otherwise act, alone or act in concert with others, to effect seek to control or seek, offer or propose (whether publicly or otherwise) to effect control of influence the management, Board of Directors or policies of the Company or its Affiliates (for this purpose, the actions of the Shareholder Designees in their capacity as directors of the Company shall not be deemed to seek be in contravention of this paragraph (xi)); or
(xii) request a waiver of any provision of the provisions of any of paragraphs (i) through (xii) of this Agreement Section 2.1 (except any request which would not require disclosure publicly or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designationto any third party); provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in 2.1 shall not restrict or inhibit the Investor Stockholders having rights of a Shareholder to file or amend exercise its voting rights as a Schedule 13D indicating an intention, plan or proposal to do any stockholder of the foregoing; or
Company (x) otherwise take any action that would or could reasonably be expected subject to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.23.2).
(b) IfAffiliates of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliates, (ii) are not Related Transferees of any Shareholder, (iii) are not in possession of any material non-public Information provided to Shareholders by the Company, its subsidiaries or representatives pursuant to Section 3.4 hereof or otherwise, and (iv) do not have voting or dispositive power over any Conversion Shares (such affiliates being "Exempt Affiliates") shall not be subject to this Section 2.1.
(c) The DLJ Shareholders represent and warrant to the Company that the DLJ Parent Entities are now, and at any time during the Standstill PeriodPeriod that they take actions that would be otherwise prohibited by Section 2.1(a) will be, (i) Exempt Affiliates. Based upon the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced foregoing representations and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything warranties in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from2.1(c), the holders of a majority of Company will consider the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)DLJ Parent Entities to be Exempt Affiliates.
Appears in 3 contracts
Sources: Shareholder Agreement (GSCP Nj Inc), Shareholder Agreements (Allied Waste Industries Inc), Shareholder Agreements (Allied Waste Industries Inc)
Standstill. Until the "Standstill Termination Date" (aas hereinafter defined), Purchaser and its affiliates (which for purposes hereof shall not include Penske or any of its subsidiaries) During will not, directly or indirectly, without the Standstill Periodexpress permission of the Corporation's Board of Directors, except as required (A) purchase or offer to purchase any of the Corporation's equity securities (or securities convertible into the Corporation's equity securities), (B) conduct a "proxy contest" to obtain control of the Corporation's Board, or (C) enter into any non-market transaction to sell Common Stock to any person or entity which does not agree in connection with writing (in form reasonably acceptable to the executionCorporation) to be subject to and bound by the provisions of this Section 4.10; PROVIDED, delivery or performance HOWEVER, that nothing herein shall limit the right of the Purchaser and its affiliates to (i) purchase securities pursuant to, and exercise all other rights contemplated by, this Agreement and the consummation "Right of First Refusal Agreement" being executed in connection herewith, (ii) purchase additional Common Stock that does not represent more than 5% of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of Corporation's aggregate outstanding shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting extent limited by the Right of such Voting Stock;
First Refusal Agreement, vote shares and exercise rights as directors and/or (iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders if and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, only if Purchaser owns at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority least 10% of the outstanding shares of the Corporation's Common Stock by reason of (A) purchases pursuant to this Agreement on or about the date hereof, and (B) purchases pursuant to the Right of First Refusal Agreement, purchase additional Common Stock that, together with such purchases and purchases made pursuant to the preceding clause (ii), represents in the aggregate not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 more than 20.5% of the Exchange ActCorporation's aggregate outstanding shares of Common Stock (it being agreed that any purchases pursuant to this item (iv) shall reduce on a one-for-one basis the number of shares that Purchaser is entitled to purchase under the Right of First Refusal Agreement); PROVIDED, FURTHER, that the provisions of this Section 4.10 shall automatically terminate in full if (x) the Corporation enters into a merger, asset purchase, business combination or similar agreement pursuant to which the Corporation's shareholders would own less than fifty percent (50%) of the surviving corporation's capital stock, or (y) a tender offer or exchange offer commences for the Corporation's equity securities. For purposes hereof, "Standstill Termination Date" means the earlier of (A) the sixth anniversary of the date of this Agreement, and (B) the date that ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ no longer serves as Chief Executive Officer of the Corporation (unless within 120 days of the termination of ▇▇. ▇▇▇▇'▇ service a successor is appointed who is approved by Purchaser, which approval shall not be unreasonably withheld or delayed).
Appears in 3 contracts
Sources: Stock Purchase Agreement (International Speedway Corp), Stock Purchase Agreement (Grand Prix Association of Long Beach Inc), Stock Purchase Agreement (Grand Prix Association of Long Beach Inc)
Standstill. The Lenders and the Noteholders hereby agree as between themselves as follows (it being acknowledged and agreed by the Credit Parties and the Collateral Agent that the provisions of this Section 2.1 are solely for the benefit of the Lenders and the Noteholders; may be amended by agreement of the Noteholders and the Lenders without need of consent of any other party; and shall not benefit or create any rights in favor of any of the Credit Parties or the Collateral Agent):
(a) During Upon the Standstill Period, except as required in connection with the execution, delivery or performance occurrence of this Agreement and the consummation any event of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall default under any of the foregoing Persons act Noteholder Documents (other than as set forth in concert with (c) below), the Noteholders shall not exercise any other Person to:
(i) except (x) as a result remedy that they may have under the Noteholder Documents to declare all or any portion of the Beneficial Ownership of Noteholder Obligations to be due and payable prior to their respective due dates or commence the exercise of any Rights, (y) for the receipt of any Capital Stock, other rights or remedies unless at least 30 days have elapsed following written notice of such event of default having been given by any one or more of the Noteholders to each of the Lenders and the other securities from Noteholders, unless the Company Required Lender Creditors otherwise consent. This provision shall not apply if the Lenders shall have, for any reason (whether or not in breach of its agreement set forth in paragraph (b) of this Section 2.1) declared all or any portion of the Lender Obligations to be due and payable prior to their respective due dates, or if such obligations have been automatically accelerated pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%12.1(a) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2Purchase Agreement.
(b) If, at Upon the occurrence of any time during event of default under any of the Standstill Period, Lender Documents (iother than as set forth in (c) the Company has entered into a definitive agreementbelow), the consummation Lenders shall not exercise any remedy that they may have under the Lender Documents to declare all or any portion of which would result the Lender Obligations to be due and payable prior to their respective due dates or commence the exercise of any other rights or remedies unless at least 30 days have elapsed following written notice of such event of default having been given by any one or more of the Lenders to each of the Noteholders and the other Lenders, unless the Required Holders otherwise consent. This provision shall not apply if the Noteholders shall have, for any reason (whether or not in a Fundamental Changebreach of its agreement set forth in paragraph (a) of this Section 2.1) declared all or any portion of the Noteholder Obligations to be due and payable prior to their respective due dates, or (ii) any Person shall if such obligations have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and been automatically accelerated pursuant to 11 of the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply)Credit Agreement.
(c) Anything in this Section 4.2 So long as the Discharge of all Secured Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Credit Party, the Collateral Agent shall have the exclusive right, and the Required Creditors shall have the exclusive right to instruct the Collateral Agent, to enforce rights, exercise remedies (including set-off and the right to credit bid their debt) and make determinations regarding the release, disposition, or restrictions with respect to the contrary notwithstandingCollateral; provided, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is that: (i) an Investor Stockholder or an Affiliate no such instruction shall occur during any standstill period set forth above other than upon the direction of an Investor Stockholder or both (A) the Required Lender Creditors and (B) the Required Holders; (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate after the standstill period set forth above, absent commencement of an Investor Stockholder is also Insolvency or Liquidation Proceeding, (A) the Majority Revolving Lenders shall have the exclusive right to make such instructions as to the Receivable Rights and (B) the Majority Term Lenders shall have the exclusive right to make such instructions as to the Non-Receivable Collateral; and (iii) (A) in any Insolvency or Liquidation Proceeding commenced by or against any Borrower or any other Credit Party, each Secured Creditor may file a memberclaim or statement of interest with respect to the Secured Obligations, (B) each Secured Creditor may take any action (not adverse to the Liens on the Collateral securing the Secured Obligations, or the rights of the Collateral Agent or the Secured Creditors to exercise remedies in respect thereof) in order to preserve or protect its Lien on the Collateral, in each case unless such transaction is approved in accordance with the terms of this Agreement, and (C) each Secured Creditor shall be entitled to file any necessary responsive or defensive pleading in opposition to any motion, claim, adversary proceeding or other pleading made by (any person objecting to or in otherwise seeking the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority disallowance of the outstanding shares claims of Common Stock not Beneficially Owned such Secured Creditor, including any claim secured by the Investor Stockholders or any Collateral, if any, in each case in accordance with the terms of their affiliates (as defined this Agreement, in Section 12b-2 each case in accordance with the terms of the Exchange Act)this Agreement.
Appears in 3 contracts
Sources: Intercreditor Agreement, Intercreditor and Collateral Agency Agreement (Stonemor Partners Lp), Intercreditor and Collateral Agency Agreement (Stonemor Partners Lp)
Standstill. Buyer agrees that, except as contemplated by Section 8.02, from the date hereof until the earlier of (a) During the Standstill Periodfive year anniversary of the Closing Date, except as required (b) the date on which the Company either accepts or enters into an agreement, an agreement in connection principle or other similar document with respect to an Acquisition Proposal made by any Person other than Buyer (or announces an intention to do so), (c) the execution, delivery date on which the Company rejects or performance fails to accept a 100% Acquisition Proposal from Buyer that Buyer is permitted to make under the terms of this Agreement Article 8 and that the consummation Company is required to accept under the terms of the transactions pursuant to the Series C Purchase this Agreement, or (d) the Investor Stockholders date of any breach by the Company or any of its Affiliates of any obligation under this Agreement as set forth in Sections 8.03 through 8.13 (the earliest of such dates the “Sale Restriction Termination Date”), Buyer shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities not permit its Affiliates to, acting either alone or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
or Group, directly or indirectly (collectively, the “Restricted Buyer Persons”) take any of the actions listed in Section 8.01(d) below. Buyer agrees that, except as contemplated by the Buyer Acquisition Transactions, from the date hereof until the earlier of (i) except (x) as a result the five year anniversary of the Beneficial Ownership of or exercise of any RightsClosing Date, (yii) for the receipt of any Capital Stock, rights or other securities from date on which the Company pursuant consummates an Acquisition Proposal made by a Person or Group other than Buyer, (iii) the date on which the Company rejects or fails to accept a 100% Acquisition Proposal from Buyer that Buyer is permitted to make under the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof this Article 8 and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in Company is required to accept under the aggregate by the Investor Stockholders terms of this Agreement and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely the date of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to breach by the Company or any of its Subsidiaries;Affiliates of any obligation under this Agreement as set forth in Sections 8.03 through 8.13 (the earliest of such dates, the “Standstill Termination Date”), the Restricted Buyer Persons shall not take any of the actions listed in Sections 8.01(a), (b) or (c) below; provided that the Restricted Buyer Persons shall be bound by the provisions of Section 8.09 after the Standstill Termination Date. During the periods and to the extent set forth above, the Restricted Buyer Persons shall not:
(viia) authorize acquire or take offer, seek, propose or agree to acquire, by any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot means whatsoever, including by means of any other Person other than the proxy purchase or ballot exchange of the Company with the recommendation shares or any business combination, Beneficial Ownership of the Board;
(viii) otherwise act, alone any Voting Securities or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies any assets of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii)Subsidiary;
(ixb) take make any action that results Acquisition Proposal;
(c) commence, engage in, encourage, facilitate or otherwise participate in any Proxy Solicitation, agree or announce its intention to vote with any Person engaging in any such solicitation, or seek to influence, advise or direct the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do vote of any holder of the foregoingVoting Securities in connection with any such solicitation; or
(xd) sell, pledge, encumber or otherwise take transfer or agree to transfer (a “Transfer”), directly or indirectly, any action that would Voting Securities Beneficially Owned by Buyer or could reasonably be expected its Affiliates or any Voting Securities held by the Voting Trust except (i) pursuant to compel the Company to make any merger, consolidation, reorganization, recapitalization, tender offer, exchange offer, or other similar transaction approved by a public announcement regarding any majority of Unaffiliated Directors, or a self-tender of the matters Company, (ii) to an Affiliate of Buyer who agrees in writing to be bound by the terms of this Agreement and (iii) pursuant to a bona fide pledge to a financial institution. Notwithstanding anything in the foregoing to the contrary, it is agreed that the restrictions set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they 8.01 will not directly prevent Buyer or indirectly proposeits Affiliates or its representatives from engaging in brokerage, effect investment advisory or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a membermanagement, in each case unless such transaction is approved by (or trust and fiduciary, arbitrage, trading and lending activities in the case normal and usual course of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)business.
Appears in 3 contracts
Sources: Investment Agreement (Banco Santander Central Hispano Sa), Investment Agreement (Banco Santander Central Hispano Sa), Investment Agreement (Sovereign Bancorp Inc)
Standstill. (a) During Until the Standstill Period, except as required in connection with earliest to occur of (A) the execution, delivery or performance of this Agreement and the consummation tenth anniversary of the transactions purchase of the Senior Preferred Stock pursuant to the Series C Preferred Stock Purchase Agreement, (B) the Investor Stockholders date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and (ii) less than 10% of the Actual Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders; provided that the Shareholders at such time are entitled to designate not more than one director pursuant to Article 3 hereof, and (C) termination under Section 2.2 (such period, the "Standstill Period") (provided that the Standstill Period shall end (x) with respect to the DLJ Shareholders, on the date on which the DLJ Shareholders no longer own any shares of Senior Preferred Stock or any Conversion Shares, and (y) with respect to the Greenwich Street Shareholders, on the date on which the Greenwich Street Shareholders no longer own any shares of Senior Preferred Stock or any Conversion Shares), each Shareholder will not, and the Investor Stockholders shall ensure that none will cause each of the Elevation Entities its Affiliates (other than Exempt Affiliates) not to, directly or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person toindirectly:
(i) except (x) as a result acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Voting Securities or voting rights or direct or indirect rights or options to acquire any Voting Securities of the Beneficial Ownership Company or any of or its Affiliates other than (A) the exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other convertible securities from the Company pursuant to acquired in compliance with the terms of this Agreement (including the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number acquisition of shares of Common Stock issuable or Junior Preferred Stock upon conversion or exercise of the Series B shares of Senior Preferred Stock), Series C Preferred Stock or Warrants an acquisition as a result of any anti-dilution a stock split, stock dividend or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as suchsimilar recapitalization, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize the acquisition of shares of Senior Preferred Stock which are subject to the Preferred Stock Purchase Agreement, (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer of the Company, acquisitions by the Apollo/Blackstone Shareholders of up to a collective aggregate amount of 3,000,000 shares (as such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or make any other recapitalization of the Company) of Common Stock, (D) stock options or similar rights granted by the Company to an Affiliate of such Shareholder as compensation for performance as a tender offerdirector or officer of the Company or its subsidiaries (and any shares issuable upon exercise thereof), exchange offer (E) transfers between such Shareholder and Related Transferees as permitted under Section 4.1(f) or other offer or proposal(F) any rights which are granted to all shareholders of the Company (and any shares issuable upon exercise thereof); provided, whether oral or writtenhowever, to acquire Equity Securities, in each case, that if the effect Shareholders or any of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of in good faith inadvertently acquire not more than 500,000 shares of Common Stock Beneficially Owned in violation of these provisions and within 15 days after the first date on which the Shareholders have actual knowledge (including by way of written notice given by the Investor Stockholders and Company) that a violation has occurred Shareholders or any of their Affiliates, there Affiliates shall be excluded from such calculation have transferred any shares of Common Stock Beneficially Owned held in violation of these provisions to unrelated third parties so that the Shareholders and their Affiliates no longer beneficially own any such shares or have any agreement or understanding relating to such shares, this Section 2.1 shall be deemed to not have been violated; and provided, further, that no violation of this provision shall be deemed to have occurred by Affiliates reason of the Investor Stockholders that are not also Beneficially Owned indirect acquisition of beneficial ownership of securities resulting from (x) investments in investment funds as to which no Shareholder or Affiliate thereof has control or power to control with respect to voting or investment decisions or (y) acquisitions of securities by the Investor Stockholders, up a limited partner in any Shareholder or Affiliates thereof as to a maximum number of shares of Common Stock that will be excluded pursuant which limited partner no Shareholder or its Affiliates has control or power to this clause equal to one percent (1%) of the Diluted Common Shares Outstandingcontrol;
(ii) (A) solicit make or participate in cause to be made any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than proposal for a Reorganization Transaction except for Dispositions in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a memberArticle 4;
(iii) deposit form, join or in any Voting Stock way participate in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person Group with respect to any securities of the voting Company or its Affiliates, other than with other Shareholders or Affiliates of such any Shareholder; provided, however, that in the case of securities other than Voting StockSecurities, Shareholders may participate in a Group with respect thereto with the prior approval of a majority of the entire Board of Directors (which approval is requested in a manner which does not require disclosure publicly or to any third party);
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other groupmake, or otherwise act in concert with any third Person for way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(vExchange Act) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or its Affiliates, or communicate with, seek to advise, encourage or influence any Person, in any manner, with respect to the voting of, securities of the Company or its SubsidiariesAffiliates, or become a "participant" in any "election contest" (as those terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or its Affiliates (other than non-public communications with other Shareholders or Affiliates of any Shareholder which would not require public disclosure by any Person or solicitation of proxies in support of the election of Shareholder Designees, Management Directors and Unaffiliated Directors nominated by the Board of Directors in accordance with Section 3.1 hereof in circumstances in which a third party is soliciting parties for the election of nominees not nominated by the Board of Directors);
(v) initiate, propose or, except with the prior approval of a majority of the entire Board of Directors (which approval is requested in a manner which does not require disclosure publicly or to any third parties) otherwise solicit stockholders for the approval of one or more stockholder proposals with respect to the Company or its Affiliates or induce or attempt to induce any other Person to initiate any stockholder proposal or seek election to or seek to place a representative on the Board of Directors of the Company (except pursuant to Section 3.1 of this Agreement) or its Affiliates or seek the removal of any member of the Board of Directors of the Company or its Affiliates (for this purpose, the actions of the Shareholder Designees in communicating (without public disclosure or disclosure to third parties) with the Board of Directors in their capacity as directors of the Company, and non-public communication by a Shareholder with other Shareholders or Affiliates of any Shareholder which would not require public disclosure by any Person, shall not be deemed to be in contravention of this paragraph (v));
(vi) in any manner, agree, attempt, seek or propose (other than making any request for permission with respect thereto which would not require disclosure publicly or to any third party) to deposit any securities of the Company or its Affiliates in any voting trust or similar arrangement or to subject any securities of the Company or its Affiliates to any other voting or proxy agreement, arrangement or understanding (other than any such agreements or understandings with other Shareholders or Affiliates of any Shareholder);
(vii) authorize offer, sell or take transfer any action Voting Securities or rights to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company receive Voting Securities except for Dispositions in accordance with the recommendation of the BoardArticle 4;
(viii) disclose any intention, plan or arrangement, or make any public announcement (or request permission to make any such announcement other than making any request for permission which would not require disclosure publicly or to any third party), or induce any other Person to take any action, inconsistent with the foregoing;
(ix) enter into any negotiations, arrangements or understandings with any third party with respect to any of the foregoing;
(x) advise, assist or encourage or finance (or assist or arrange financing to or for) any other Person in connection with any of the foregoing;
(xi) otherwise act, alone or act in concert with others, to effect seek to control or seek, offer or propose (whether publicly or otherwise) to effect control of influence the management, Board of Directors or policies of the Company or its Affiliates (for this purpose, the actions of the Shareholder Designees in their capacity as directors of the Company shall not be deemed to seek be in contravention of this paragraph (xi)); or
(xii) request a waiver of any provision of the provisions of any of paragraphs (i) through (xii) of this Agreement Section 2.1 (except any request which would not require disclosure publicly or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designationto any third party); provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in 2.1 shall not restrict or inhibit the Investor Stockholders having rights of a Shareholder to file or amend exercise its voting rights as a Schedule 13D indicating an intention, plan or proposal to do any stockholder of the foregoing; or
Company (x) otherwise take any action that would or could reasonably be expected subject to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.23.2).
(b) IfAffiliates of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliates, (ii) are not Related Transferees of any Shareholder, (iii) are not in possession of any material non-public Information provided to Shareholders by the Company, its subsidiaries or representatives pursuant to Section 3.4 hereof or otherwise, and (iv) do not have voting or dispositive power over any shares of Senior Preferred Stock or any Conversion Shares (such affiliates being "Exempt Affiliates") shall not be subject to this Section 2.1.
(c) The DLJ Shareholders represent and warrant to the Company that the DLJ Parent Entities are now, and at any time during the Standstill PeriodPeriod that they take actions that would be otherwise prohibited by Section 2.1(a) will be, (i) Exempt Affiliates. The Greenwich Street Shareholders represent and warrant to the Company has entered into a definitive agreementthat the Greenwich Street Parent Entities are now, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but at all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that times during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will not directly or indirectly proposebe, effect or agree to any transaction which if consummated would result Exempt Affiliates. Based upon the foregoing representations and warranties in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders fromthis Section 2.1(c), the holders of a majority of Company will consider the outstanding shares of Common Stock not Beneficially Owned by DLJ Parent Entities and the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)Greenwich Street Parent Entities to be Exempt Affiliates.
Appears in 3 contracts
Sources: Shareholder Agreements (Patel Sanjay H), Shareholder Agreements (DLJMB Funding Ii Inc), Shareholder Agreements (Allied Waste Industries Inc)
Standstill. 12.1 Other than as a result of an offer (as defined in The Takeover Code), recommended by a simple majority of the INEDs, for the Company made by that Shareholder and subject to clause 12.3, for a period of three years from the Effective Date:
(a) During the Standstill Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders Olive HoldCo (1) shall not, and the Investor Stockholders shall ensure procure that none its subsidiaries shall not; and (2) shall use commercially reasonable endeavours to procure that no direct or indirect shareholder of the Elevation Entities or their respective Affiliates shallOlive HoldCo (including any Olive Holdco Shareholders), nor shall no Relative of such a shareholder of Olive HoldCo and no Affiliate of any of the foregoing Persons act shall, acquire or agree to acquire, enter into any option to acquire, or enter into or agree to enter into any analogous transaction for or in concert respect of, any Securities or interest in Securities without the prior approval of the Board, including, if Red’s Equity Proportion is at least 10 per cent., at least one Red Nominated Director, if ▇▇▇▇▇ ▇▇▇▇▇▇’s Equity Proportion is at least 15 per cent., at least one Olive HoldCo Nominated Director and in any event, a simple majority of all INEDs present and eligible to vote on the decision; and
(b) without prejudice to clause 11.1, Red shall not, and shall procure that Red Parent and its subsidiaries shall not, acquire or agree to acquire, enter into any option to acquire, or enter into or agree to enter into any analogous transaction for or in respect of, any Securities or interest in Securities if such acquisition would result in Red’s interest in Securities, when aggregated with any other Person toSecurities acquired by Red Parent or any of its subsidiaries, exceeding 21 per cent. of the fully-diluted share capital of the Company, unless:
(i) except (x) as a result such acquisition is made, with the prior approval of the Beneficial Ownership of or exercise of any RightsBoard, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as suchincluding, if any▇▇▇▇▇ ▇▇▇▇▇▇’s Equity Proportion is at least 15 per cent., (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securitiesby at least one ▇▇▇▇▇ ▇▇▇▇▇▇ Nominated Director and, in each caseany event, if a simple majority of all INEDs present and eligible to vote on the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;decision; or
(ii) such acquisition is made (Aand is no greater than is required) solicit or participate in any solicitation order to allow Red Parent to continue to “equity account” for Red’s holding of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect Shares and Red’s Parent has first delivered to the voting Company a written opinion of any Voting Stock its auditors or other firm of chartered accountants of international repute appointed by Red Parent (other than (xas applicable) confirming that such acquisition is the Investor Stockholders or any Affiliate or (y) other than minimum acquisition necessary in accordance with and consistent with the recommendation order to allow Red Parent to continue to “equity account” for Red’s holding of the Board)Shares; provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;or
(iii) deposit if permitted to be made by the Takeover Panel (in circumstances where the Takeover Panel has determined that the Shareholders are at that time Persons Acting in Concert), on a basis that does not give rise to an obligation on any Voting Stock person to make an offer for the Company under Rule 9 of The Takeover Code, acquisitions to the extent (but only to the extent) necessary to ensure that Olive HoldCo and Red’s aggregate holding of Shares (having been reduced to less than 50 per cent. of the voting rights (as defined in The Takeover Code) of the Company other than by a Disposal of any interest in a voting trust or, except as otherwise provided Share by either of them or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person Acting in Concert with respect to either of them) is such that they have an aggregate interest in more than 50 per cent. of the voting rights of such Voting Stock;the Company; or
(iv) join a 13D Group (other than a group comprising solely within 30 days of the Investor Stockholders and their Permitted Transferees) or other groupsuch acquisition, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company Red Parent or any of its Subsidiariessubsidiaries disposes of Securities such that Red’s interest in Securities, when aggregated with any Securities acquired by any of Red Parent’s subsidiaries, no longer exceeds 21 per cent of the fully diluted share capital of the Company.
12.2 For the purposes of clause 12.1, a person shall be treated as having an “interest” in Securities or Shares only if:
(a) he owns them;
(viib) authorize he has the right (whether conditional or take any action absolute) to permit any Affiliate of Elevation to be named as a director candidate on a proxy exercise or ballot of any other Person other than direct the proxy or ballot exercise of the Company with the recommendation voting rights attaching to them or has general control of the Boardthem;
(viiic) otherwise actby virtue of any agreement to purchase, alone option or derivative he: (i) has the right or option to acquire them or call for their delivery; or (ii) is under an obligation to take delivery of them, whether the right, option or obligation is conditional or absolute and whether it is in concert with others, to effect or seek, offer or propose (whether publicly the money or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(xd) otherwise take he is party to any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, derivative: (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated whose value is determined by Rule 14d-9, for so long as such condition continues reference to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).price; and
Appears in 2 contracts
Standstill. (a) During From and after the Standstill Perioddate hereof, except as required in connection with the executionInvestor will not, delivery and will cause each Investor Affiliate not to, directly or performance indirectly, acquire Beneficial Ownership of shares of Issuer Common Stock, including for purposes of this Agreement and Section 1.1(a), rights, options or other derivative securities or contracts or instruments to acquire such ownership that derive their value (in whole or in part) from such Issuer Common Stock, if, after giving effect to such acquisition, the consummation Investor’s Investor Percentage Interest would exceed the Cap; provided, however, that such restriction on acquisitions will not be applicable with respect to the acquisition by the Investor Affiliates of the transactions Beneficial Ownership of Issuer Common Stock (i) pursuant to the Series C Purchase AgreementAgreement (unless, for the avoidance of doubt, the Investor Stockholders shall not, and representation of the Investor Stockholders shall ensure that none in Section 4.2(d) hereof is not true and correct), (ii) as a result of any stock splits, stock dividends or other distributions or recapitalizations or similar offerings made generally available by the Issuer or any Subsidiary thereof to holders of Issuer Common Stock (or other equity securities of the Elevation Entities Issuer), including rights offerings and distributions made generally to holders of Issuer Common Stock (or their respective Affiliates shall, nor shall any other equity securities of the foregoing Persons act in concert with any Issuer) as a result of their ownership of Issuer Common Stock (or other Person to:
equity securities of the Issuer) including pursuant to a shareholder rights plan or similar plan or agreement, (i) except (xiii) as a result of the Beneficial Ownership of exercise (or exercise exchange) of any Rightsrights distributed by the Issuer pursuant to clause (ii) above, (iv) in accordance with a Permitted Offer or (v) which has been approved by a majority of the Non-Investor Directors.
(b) Notwithstanding the provisions of Section 1.1(a), at any time following the earlier of (x) ten (10) days following the date any Third Party commences (within the meaning of Section 14(d) of the Exchange Act) a tender or exchange offer which, if consummated, would result in such Person becoming the Beneficial Owner of Issuer Common Stock (or other equity securities) having Majority Voting Power (such offer, a “Third Party Offer”), unless during such ten (10) day period, the Issuer Board takes such actions as are reasonably necessary to prevent, delay, or restrict the purchase of Issuer Common Stock (or other equity securities) pursuant to such Third Party Offer, including implementation of a shareholder rights plan and other customary defensive actions, (y) the date Issuer publicly recommends a Third Party Offer or takes any action inconsistent with actions previously taken pursuant to clause (x) (including granting an exception in respect of such Third Party Offer under any shareholder rights plan or granting approval of such offeror for purposes of DGCL Section 203), and (z) at any time following December 31, 2016, so long as, in the receipt case of any Capital Stockan action pursuant to this clause (z), rights or other securities from Investor has, subsequent to such date, negotiated in good faith with the Company pursuant Issuer Board for a period of at least thirty (30) days as to the terms of such proposed offer, then in each case, the Series B Preferred Stock, Series C Preferred Investor Affiliates will be entitled to commence and accept for purchase and purchase shares of Issuer Common Stock pursuant to a tender or Warrants exchange offer so long as such tender or exchange offer (such tender or exchange offer meeting the exercise or conversion of any such Capital Stock rights or other securitiesrequirements set forth in this Section 1.1(b), including any increase a “Permitted Offer”):
(i) is commenced and made in accordance with the applicable rules and regulations under the Exchange Act applicable to tender or exchange offers, including, if applicable, Section 13(e)-3 of the Exchange Act and the related rules and regulations applicable thereto;
(ii) is made to all holders of Issuer Common Stock;
(iii) will expire no earlier than midnight, New York City time, on the twentieth (20th) business day following the commencement thereof (as determined using Rule 14d-1(g)(3) under the Exchange Act);
(iv) is subject to customary conditions to the obligation of the Investor Affiliates to purchase Issuer Common Stock; provided, that, (A) in the event a Permitted Offer is made pursuant to clause (z) of Section 1.1(b) and no Third Party Offer is commenced or made during the period such Permitted Offer is outstanding, it will be a condition to closing of such Permitted Offer that the number of shares of Issuer Common Stock issuable upon conversion or exercise of the Series B Preferred Stocktendered and not withdrawn, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate when purchased by the Investor Stockholders and their Affiliates, constitute no less than a majority of the outstanding shares of Issuer Common Stock outstanding at the time of commencement that are not Beneficially Owned by the Investor Affiliates (includingas of the date such Permitted Offer is commenced, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that disregarding for purposes of calculating the number of outstanding shares of Issuer Common Stock Beneficially Owned any such shares issued pursuant to Section 1.5(e) (such condition, the “Minimum Condition”) and (B) any conditions to the consummation of such offer may be waived by the Investor Stockholders and their Affiliatesin its sole discretion, there shall be excluded from other than, in the event no Third Party Offer is outstanding or is made, in each case, during the pendency of such calculation shares of Common Stock Beneficially Owned by Affiliates Permitted Offer, the Minimum Condition; and
(v) provides for consideration payable in cash, common stock or other securities of the Investor Stockholders that are not also Beneficially Owned or a Subsidiary thereof, or a combination thereof; provided, that, such consideration offered has, on a per share of Issuer Common Stock basis, a fair market value (as determined in good faith by the Investor Stockholders, up Investor’s board of directors) equal to a maximum number or greater than the closing price of shares of the Issuer Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of on Nasdaq on the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect Trading Day immediately prior to the voting earlier of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or public announcement of such Permitted Offer and (y) other than in accordance commencement of such Permitted Offer.
(c) In the event the Investor Affiliates make a Permitted Offer, the Issuer will furnish the Investor Affiliates with and consistent with all information concerning the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended Issuer required by the Board relating to a Change in Control of the Company Exchange Act to be voted included in the applicable offering document for such Permitted Offer.
(d) Except as provided in or permitted by Sections 1.1(b), (e), (f), (g) and (h) unless specifically approved in writing by Issuer, the Investor will not, and will cause each Investor Affiliate and its and their respective Representatives acting on by the Company’s stockholders that is not instituted behalf of Investor or proposed by any Investor Stockholder Affiliate not to, in any manner, directly or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;indirectly:
(iiii) deposit any Voting Stock in a voting trust orenter into or agree, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect effect, or announce any Change in Control of the Company;
(vi) intention to effect or seekcause or participate in or in any way assist, offer facilitate or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of encourage any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control or participate in: (A) except to the extent otherwise specifically permitted by this Agreement, any acquisition of any Issuer Common Stock (or Beneficial Ownership thereof) or any material portion of the assets of Issuer and its Subsidiaries (taken together); (B) any tender or exchange offer, merger or other business combination involving Issuer or any of its Subsidiaries (provided, that, this clause does not restrict any Investor Affiliate from (x) opposing publicly or privately any tender or exchange offer, merger or other business combination involving the Issuer or any Subsidiary thereof or (y) Transferring any shares of Issuer Common Stock pursuant to such tender or exchange offer, merger or other business combination); or (C) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Issuer or any of its Subsidiaries;
(ii) except as provided in Article 3, make or participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined under Regulation 14A under the Exchange Act) to vote, or seek to advise or influence any Person or entity with respect to the voting of, any Issuer Common Stock or any demand for a copy of Issuer’s stock ledger, list of stockholders or any other books and records of Issuer (other than with respect to matters related to the Investor’s exercise or enforcement of rights under the Purchase Agreement), except that this subsection does not restrict (A) the Investor Directors from participating as members of the Issuer Board and any committees thereof in their capacity as such or (B) the Investor Affiliates from opposing publicly or privately, or voting against or encouraging others to vote against, (x) any proposal of a third party regarding a merger or other business combination involving the Issuer or any Subsidiary thereof or (y) other similar corporate transaction on which a vote of the Issuer’s stockholders is required under Delaware Law or Nasdaq rules;
(iii) call or seek to call a meeting of Issuer’s stockholders or initiate any stockholder proposal for action by Issuer’s stockholders, form, join or in any way participate in a 13D Group or otherwise act in concert with any Person, in each case, with respect to the Issuer Common Stock, or seek, propose or otherwise act alone or in concert with others, to influence or control Issuer’s management, the Issuer Board or policies policies, except that this subsection does not restrict (x) the Investor Directors from participating as members of the Company or to seek a waiver of Issuer Board and any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely committees thereof in their capacities capacity as suchsuch and (y) shall be deemed the Investor from joining or in any way participating in a 13D Group or otherwise acting in concert with any Person, in each case, to violate this exercise its rights under Section 4.2(a)(viii1.1(d)(ii)(B);
(ixiv) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that which would or could would reasonably be expected to compel the Company force Issuer to make a public announcement regarding any of the types of matters set forth in clause (i) above;
(v) bring any action, or otherwise act, to contest the validity of this Section 4.21.1(d); or
(vi) enter into any discussions or arrangements with any third party with respect to any of the foregoing (except as otherwise expressly provided herein).
(be) IfUnless earlier terminated or made inapplicable pursuant to Section 1.1(f), at the provisions of Section 1.1(d) (other than the provisions of Section 1.1(d)(i)) will terminate upon the expiration of the Restricted Period. For the avoidance of doubt, any time during tolling of such restrictions pursuant to Section 1.1(f) will not result in any extension of the Standstill Periodperiod referred to in the previous sentence.
(f) The restrictions set forth in Section 1.1(d) (other than the provisions of Section 1.1(d)(i)) shall not apply (and the Investor will be permitted to take the actions otherwise prohibited thereunder) if any of the following occurs (provided, that, in the event any matter described in clauses (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced of this Section 1.1(f) has occurred and not withdrawn a bona fide public tender or exchange offer which if consummated would result resulted in a Fundamental Change and the Board restrictions imposed under Section 1.1(d) (other than the provisions of Section 1.1(d)(i)) ceasing to apply to the Investor, then, in the event the transaction related to such matter has not recommended that its stockholders reject occurred within six (6) months of the date on which the Investor was released from such offer within the time period contemplated by Rule 14d-9restrictions, for then so long as such condition continues to applytransaction is not being actively pursued at such time, the limitation on restrictions set forth in Section 1.1(d) shall thereafter resume and continue to apply in accordance with their terms, until terminated pursuant to Section 1.1(e) or subsequently made inapplicable pursuant to this Section 1.1(f)):
(i) in the actions described in clauses event that a tender offer or exchange offer for at least thirty-five percent (a)(ii)35%) of the Issuer Common Stock is commenced (within the meaning of Section 14(d) of the Exchange Act) by a third Person which, (a)(iii)for the avoidance of doubt, (a)(iv) is not an Investor Affiliate (and not involving any related acquisition breach of Beneficial Ownership solely by being part of a group shall be exempt from (a)(iSection 1.1(d))) which tender offer or exchange offer, (a)(v)if consummated, (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is such third party (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a any 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder such third party is also a member, in each case unless such transaction is approved by ) becoming the Beneficial Owner of securities representing greater than either thirty-five percent (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority 35%) of the outstanding shares of Issuer Common Stock or thirty-five percent (35%) of the voting power of the Issuer, and either (1) the Issuer Board recommends that the stockholders of the Issuer tender their shares in response to such offer or does not Beneficially Owned recommend against the tender offer or exchange offer within ten (10) days after the commencement thereof or such longer period as shall then be permitted under U.S. federal securities laws or (2) the Issuer Board later publicly recommends that the stockholders of the Issuer tender their shares in response to such offer;
(ii) the Issuer solicits from one or more Persons, or enters into substantive discussions with one or more Persons regarding, a proposal with respect to a Change of Control Transaction, or the Issuer makes a public announcement that it is seeking to sell itself and, in such event, such announcement is made with the approval of the Issuer Board;
(iii) subject to the obligations of the Investor under Section 3.2, in the event that the Persons designated by the Investor Stockholders to be elected or appointed to the Issuer Board as Investor Directors pursuant to Article 3 hereof are either (x) not appointed to the Issuer Board as contemplated herein or nominated for inclusion on management’s slate of nominees for election to the Issuer Board at any Election Meeting or (y) if so nominated are not so elected to the Issuer Board, or the Issuer otherwise breaches its obligations under Article 3;
(iv) the Investor Percentage Interest is less than ten percent (10%);
(v) the Investor Percentage Interest is greater than fifty percent (50%);
(vi) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (x) liquidation, reorganization or other relief in respect of the Issuer or any material Subsidiary or its debts, or of their affiliates a substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar Law now or hereafter in effect or (as defined y) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Issuer or any material Subsidiary or for a substantial part of its assets, and, in Section 12b-2 any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the Exchange Actforegoing shall be entered; or
(vii) the Issuer or any material Subsidiary shall (A) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar Law now or hereafter in effect, (B) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (A) above, (C) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Issuer or any material Subsidiary or for a substantial part of its assets, (D) file an answer admitting the material allegations of a petition filed against it in any such proceeding, or (E) make a general assignment for the benefit of creditors.
(g) So long as the Investor Percentage Interest is equal to or greater than fifteen percent (15%), the Issuer agrees not to enter into any agreement regarding a (i) merger, (ii) consolidation, (iii) Change of Control Transaction, or (iv) other business combination transaction unless, in each case, at least ten (10) days prior to the execution of such agreement, the Issuer has given Investor written notice of its intention to enter into such agreement.
(h) Notwithstanding the provisions of Section 1.1(d), and so long as the Investor Percentage Interest is equal to or greater than fifteen percent (15%), in the event (i) the Issuer solicits from one or more Persons or enters into substantive discussions with one or more Persons regarding a proposal with respect to (x) a Change of Control Transaction or (y) a sale of a material portion of the Issuer’s assets outside the ordinary course of business or (ii) the Issuer provides any notice to Investor pursuant to Section 1.1(g), in each case, Investor will be entitled to engage in private discussions with, and make private proposals to, the Issuer Board or management of the Issuer with respect to such proposed transaction or a competing proposal by the Investor.
Appears in 2 contracts
Sources: Investor Rights Agreement (FTD Companies, Inc.), Investor Rights Agreement (FTD Companies, Inc.)
Standstill. From the date hereof until the fifth anniversary after the date the Common Stock is first Publicly Traded (as defined in the Charter as in effect on the date hereof), without PRAECIS' prior written consent, neither Purchaser nor any of its Affiliates will, directly or indirectly:
(a) During the Standstill Periodacquire, except offer or propose to acquire, or agree to acquire, by purchase or otherwise, any Voting Securities, or direct or indirect rights or options to acquire (through purchase, exchange, conversion or otherwise), any Voting Securities (as required in connection defined herein) if, after giving effect to any such acquisition, Purchaser, alone or together with the executionits Affiliates, delivery or performance of this Agreement and the consummation would beneficially own Voting Securities representing more than 8.2% of the transactions pursuant voting power of all then outstanding Voting Securities, provided, however, that notwithstanding anything to the Series C Purchase contrary contained in this Agreement, the Investor Stockholders foregoing 8.2% limitation shall not, and not be deemed to be violated if the Investor Stockholders shall ensure that none percentage of the Elevation Entities or their respective voting power of all outstanding Voting Securities represented by Voting Securities beneficially owned by Purchaser and its Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) is increased as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase a decrease in the number of shares outstanding Voting Securities caused by a repurchase of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate securities by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder PRAECIS or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned other action taken by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares OutstandingPRAECIS;
(iib) (A) solicit make, or participate in any solicitation way participate in, any "solicitation" of proxies with respect "proxies" to any Voting Stockvote (as such terms are used in the proxy rules of the SEC under the Securities Exchange Act of 1934, or as amended (B) the "Exchange Act")), seek to advise advise, encourage or influence any Person person or entity with respect to the voting of any Voting Stock (Securities, initiate, propose or otherwise solicit stockholders of PRAECIS for the approval of one or more stockholder proposals or induce or attempt to induce any other than (x) the Investor Stockholders or person to initiate any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board)stockholder proposal; provided, however, that Purchaser shall not, in any event, be deemed to "solicit" or to be a participant in a "solicitation" for purposes of this subparagraph (b) by reason of the limitation contained in this clause (ii) shall not apply exercise by Purchaser or its Affiliates of voting rights with respect to any proposal recommended Voting Securities beneficially owned by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted Purchaser or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a memberits Affiliates;
(iiic) make any proposal, whether written or oral, to the Board of Directors of PRAECIS, any director or officer of PRAECIS, or make any public announcement concerning such a proposal, with respect to a tender offer for any Voting Securities, a merger or other business combination, sale or transfer of assets, liquidation or other extraordinary corporate transaction involving PRAECIS;
(d) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities;
(e) deposit any Voting Stock in Securities beneficially owned by Purchaser or its Affiliates into a voting trust or, except as otherwise provided or contemplated herein, subject any such Voting Stock Securities to any arrangement or agreement with any Person with respect to the voting of any such Voting StockSecurities or any agreement having similar effect, other than a trust or similar arrangement to which only Purchaser and its Affiliates are parties;
(ivf) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert execute any written stockholder con-sent with respect to any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viiig) otherwise act, alone or in concert with others, to effect seek to affect or seek, offer or propose (whether publicly or otherwise) to effect influence the control in any material respect of the management, policies or Board of Directors of PRAECIS, or policies of the Company or to seek a waiver of make any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii)public statement with respect thereto;
(ixh) take knowingly and intentionally sell or otherwise transfer any Shares to any "person" (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934) or group (within the meaning of Rule 13d-5(b)(1) under the Securities Exchange Act of 1934) as to which Purchaser has received notice from PRAECIS of such person's or group's intention to seek to take, assist or participate in any of the actions described in clauses (b) through (g) above;
(i) in any way participate in, encourage, assist or otherwise induce any person (as that term is used in Section 13(d)(3) of the Exchange Act) to take, any action that results in the Investor Stockholders having to file prohibited by or amend a Schedule 13D indicating an intention, plan or proposal to do any of inconsistent with the foregoing; or
(xj) otherwise take any other action inconsistent with the foregoing, provided that would seeking any waiver from PRAECIS or could reasonably be expected to compel the Company to make a public announcement regarding any amendment of the matters set forth any covenant or agreement of or restriction on Purchaser or its Affiliates contained in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result Agreement in a Fundamental Change, manner which is not calculated or (ii) any Person shall have commenced and not withdrawn a bona fide reasonably likely to be disseminated to the public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to deemed "action inconsistent with the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply)foregoing".
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 2 contracts
Sources: Stock and Warrant Purchase Agreement (Praecis Pharmaceuticals Inc), Stock and Warrant Purchase Agreement (Praecis Pharmaceuticals Inc)
Standstill. (a) During the Standstill Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions pursuant Notwithstanding anything to the Series C Purchase Agreementcontrary contained herein, the Investor Stockholders shall not, Seller hereby acknowledges and the Investor Stockholders shall ensure agrees that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except the Preferred Shares of Purchaser delivered under the provisions of this Section 2.2.1 and any shares of Common Stock issued upon the conversion of such Preferred Shares (collectively, the "Consideration Shares") shall only be transferred by Seller pursuant to an effective registration of the offering of such shares under the Securities Act or in a transaction that is not in violation of applicable securities Laws; (ii) the Preferred Shares shall not be converted to Common Shares prior to the date (the period prior to such date, the "Waiting Period") that is the earlier of (x) as a result six (6) months after the date of the Beneficial Ownership issuance and delivery to Seller of such Preferred Shares or exercise of any Rights, (y) for the receipt effective date of any Capital Stocka registration statement regarding the offering of such shares by the Seller (or its direct or indirect transferee) under the Securities Act; and (iii) following the Waiting Period, rights the Seller (or other securities from its direct or indirect transferee) shall not convert more than that number of Preferred Shares to Common Shares than an aggregate of Thirty-Seven thousand and Five Hundred Dollars ($37,500), per week, such amount computed based on the Company pursuant to the terms five day moving average of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number closing last trade price of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder quoted on ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any Affiliate thereof is a member) would exceed the Standstill Limitsuch national securities exchange if Purchaser's shares are listed on such an exchange, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there Seller shall be excluded prohibited from such calculation shares converting any amount of Common Stock Beneficially Owned by Affiliates Consideration Shares in excess of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained permitted in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control iii). Each direct or indirect transferee of the Company Preferred Shares shall agree to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision provisions of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as suchSection 2.2.1(b) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject pursuant to Section 4.2(c), continue an instrument in form and substance reasonably acceptable to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities Purchaser as a member condition to being the record or beneficial owner of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Boardsuch Preferred Shares.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Laidlaw Energy Group, Inc.), Purchase and Sale Agreement (Laidlaw Energy Group, Inc.)
Standstill. (a) During Unless otherwise permitted by the Standstill Period, except as required in connection with the execution, delivery or performance provisions of this Agreement and the consummation of the transactions pursuant to the Series C Purchase AgreementSection 6.1, the Investor Stockholders shall not, and the Investor Stockholders shall ensure procure that none its Controlled Affiliates shall not, without the prior written approval of the Elevation Entities Board, directly or their respective Affiliates shallindirectly (whether acting alone, nor shall any as a part of the foregoing Persons act a group or otherwise in concert with others): (i) acquire, or enter into any agreement with any third party with respect to the acquisition of, additional Voting Securities of the Company by the Investor or its Controlled Affiliate that will result in the Investor and its Controlled Affiliate holding, in the aggregate (including the securities issuable upon exercise of the Warrant), more than 45% of the Company’s outstanding share capital (calculated on a fully-diluted basis), (ii) advise, assist, act as a financing source for or otherwise invest in any other Person to:
for the purpose described in (i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (Biii) authorize publicly disclose any intention, plan or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies arrangement with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) . If, at any time during after the Standstill Perioddate of this Agreement, (i) the Investor and/or its Controlled Affiliates proposes to acquire any additional Voting Securities of the Company has entered into such that immediately after such acquisition the Investor and/or its Controlled Affiliates shall become holder(s) of 45% or more of the Company’s outstanding share capital (calculated on a definitive agreementfully-diluted basis), then prior to completing such proposed transaction, the consummation Investor shall provide a written notice to the Board. If, within ten (10) days after the provision of which would result in the aforementioned written notice, the Investor shall not have received a Fundamental Changewritten disapproval from the Board, or (ii) any Person the Investor shall have commenced one hundred and not withdrawn a bona fide public tender twenty (120) days thereafter to complete such transaction. The Directors, when exercising their discretion in his/her approval or exchange offer which if consummated would result disapproval of any transaction proposed pursuant to this Section 6.1, shall comply with their fiduciary duty and act in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable good faith to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control best interest of the Company in which making such determination. Notwithstanding the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, restrictions in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from)this paragraph, the holders Investor and any of a majority its Affiliates shall not be prohibited from making any confidential proposal to the Board of the outstanding shares of Common Stock not Beneficially Owned by Company or requesting that the Investor Stockholders Company waive or amend any of their affiliates (as defined the provisions in this Section 12b-2 of the Exchange Act)6.1.
Appears in 2 contracts
Sources: Investor Rights Agreement (LightInTheBox Holding Co., Ltd.), Subscription Agreement (LightInTheBox Holding Co., Ltd.)
Standstill. (a) During Seagate hereby agrees that, until the Standstill Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation fifth anniversary of the transactions pursuant to the Series C Purchase AgreementEffective Date, the Investor Stockholders shall Seagate will not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person towithout Newco's prior written consent:
(i) except acquire, or enter into discussions, negotiations, arrangements or understandings with any third party to acquire, beneficial ownership (xas defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for Newco securities entitled to vote with respect to the receipt election of any Capital directors of Newco ("VOTING STOCK"), any securities convertible into, exchangeable for or exerciseable for, or that may otherwise become, Voting Stock, rights or any other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, right to acquire Equity Securities, in each caseVoting Stock, if the effect of such acquisition would be that Seagate would then beneficially own and/or have the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up right to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one acquire more than [__] percent (1__%) of the Diluted Common Shares OutstandingVoting Stock [THIS WILL BE THE PERCENTAGE OF VOTING STOCK HELD BY SEAGATE AS OF THE EFFECTIVE DATE] (the "STANDSTILL PERCENTAGE");
(ii) (A) solicit make, or participate in any solicitation way participate in, any "solicitation" of proxies with respect to any Voting Stock"proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act, or (Bas such Regulation is currently in effect) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) if Newco is at the Investor Stockholders or any Affiliate or (y) other than in accordance with time of such solicitation publicly-traded and consistent with subject to the recommendation of proxy rules promulgated under the Board)Exchange Act; provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;or
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, either alone or in concert with others, to effect control the Newco Board or seekthe policies of Newco. Notwithstanding the foregoing, offer nothing herein shall limit Seagate's ability to exercise its rights under Section 5 hereof. For purposes of this Section 4, any shares of Newco Common Stock or propose options or rights to acquire such Newco Common Stock acquired by Seagate Affiliates who are also employees or directors of Newco pursuant to Newco's option and employee stock purchase plans (whether publicly or otherwise) including any options to effect control purchase Newco securities issued to such persons under the terms of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as suchPlan) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in excluded from the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any calculation of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any number of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Voting Stock not Beneficially Owned held by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)Seagate.
Appears in 2 contracts
Sources: Stockholder Agreement (Seagate Technology Inc), Stockholder Agreement (Seagate Technology Inc)
Standstill. (a) During the Standstill Period, except so long as required in connection with the execution, delivery or performance of Company has not intentionally and materially breached this Agreement and failed to cure such breach within five business days of written notice from the consummation Sarissa Group specifying any such breach, the Sarissa Group and its Affiliates will not, without the prior written consent of the transactions Company:
(a) acquire, offer, seek or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise (but excluding any action by the Company such as a stock dividend), Beneficial Ownership of Voting Stock of the Company if after giving effect to such acquisition the Sarissa Group would Beneficially Own more than the higher of (x) 6.96% of the outstanding shares of Voting Stock of the Company and (y) such higher amount that any other person or group required to file on Schedule 13D is permitted to buy or own pursuant to the Series C Purchase Agreementterms of, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of being waived through, the Rights Plan (including any amendments thereto) or any replacement thereof or other rights plan implemented by the Company (and the Company agrees not to include a “trigger amount”, applicable to any other person or group not required to file on Schedule 13D, under the Rights Plan (including any amendments thereto) or any replacement thereof or other rights plan implemented by the Company, of more than 15% Beneficial Ownership of Voting Stock of the Company, unless such higher “trigger amount” also applies to any person or exercise of group required to file on Schedule 13D) or, if the Rights Plan (including any Rightsamendments thereto) and any replacement thereof and any other rights plan implemented by the Company, (y) for the receipt of have expired or are otherwise no longer in effect, such higher amount that any Capital Stock, rights other person or other securities from the Company group is permitted to buy or own pursuant to the terms of the Series B Preferred Stockof, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of being approved to acquire in accordance with, Section 203 of the Delaware General Corporation Law (and the Company agrees that it will grant similar waivers or approvals to the Sarissa Group under the Rights Plan (including any anti-dilution amendments thereto) or replacement thereof or other terms thereof rights plan implemented by the Company or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors 203, as it has granted or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or writtenhereafter does grant, to acquire Equity Securities, in each case, if the effect of any such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder person or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstandinggroup);
(iib) (A) solicit make, or participate in any solicitation way participate, directly or indirectly, in any “solicitation” of proxies with respect “proxies” to any Voting Stockvote (as such terms are used in the rules of the SEC), or (B) seek to advise or influence any Person person with respect to the voting of of, any Voting Stock of the Company (other than (x) in the Investor Stockholders or any Affiliate or (y) other than Sarissa Designee’s capacity as a member of the Board in accordance with and a manner consistent with the Board’s recommendation in connection with such matter);
(c) separately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, submit a proposal for or offer of (with or without conditions) (including to the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control Extraordinary Transaction. “Extraordinary Transaction” means any of the following involving the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder its Subsidiaries or any 13D Group of which any Investor Stockholder its or any Affiliate of an Investor Stockholder is their securities or a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely material amount of the Investor Stockholders and their Permitted Transferees) assets or other group, or otherwise act in concert with any third Person for the purpose businesses of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take : any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, tender offer or propose exchange offer, merger, acquisition, business combination, reorganization, restructuring, recapitalization, sale or acquisition of material assets, liquidation or dissolution (whether publicly or otherwise) to effect control of the managementcollectively, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designationan “Extraordinary Transaction”); provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
subparagraph (c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by prevent the Investor Stockholders’ designee or designees on the Board Sarissa Designee acting in their capacities his capacity as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control director of the Company in which from raising such matter at the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).Board;
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Sarissa Capital Management LP), Nomination and Standstill Agreement (Ariad Pharmaceuticals Inc)
Standstill. (a) During the Standstill Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions pursuant Notwithstanding anything to the Series C Purchase Agreementcontrary contained herein, the Investor Stockholders shall not, Seller hereby acknowledges and the Investor Stockholders shall ensure agrees that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except the Preferred Shares of Purchaser delivered under the provisions of this Section 2.2.1 and any shares of Common Stock issued upon the conversion of such Preferred Shares (collectively, the “Consideration Shares”) shall only be transferred by Seller pursuant to an effective registration of the offering of such shares under the Securities Act or in a transaction that is not in violation of applicable securities Laws; (ii) the Preferred Shares shall not be converted to Common Shares prior to the date (the period prior to such date, the “Waiting Period”) that is the earlier of (x) as a result six (6) months after the date of the Beneficial Ownership issuance and delivery to Seller of such Preferred Shares or exercise of any Rights, (y) for the receipt effective date of any Capital Stocka registration statement regarding the offering of such shares by the Seller (or its direct or indirect transferee) under the Securities Act; and (iii) following the Waiting Period, rights the Seller (or other securities from its direct or indirect transferee) shall not convert more than that number of Preferred Shares to Common Shares than an aggregate of Thirty-Seven thousand and Five Hundred Dollars ($37,500), per week, such amount computed based on the Company pursuant to the terms five day moving average of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number closing last trade price of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder quoted on ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any Affiliate thereof is a member) would exceed the Standstill Limitsuch national securities exchange if Purchaser’s shares are listed on such an exchange, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there Seller shall be excluded prohibited from such calculation shares converting any amount of Common Stock Beneficially Owned by Affiliates Consideration Shares in excess of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained permitted in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control iii). Each direct or indirect transferee of the Company Preferred Shares shall agree to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision provisions of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as suchSection 2.2.1(b) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject pursuant to Section 4.2(c), continue an instrument in form and substance reasonably acceptable to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities Purchaser as a member condition to being the record or beneficial owner of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Boardsuch Preferred Shares.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Laidlaw Energy Group, Inc.), Purchase and Sale Agreement (Laidlaw Energy Group, Inc.)
Standstill. For the period commencing on the date hereof and ending on the earlier of (i) the two year anniversary of the date hereof and (ii) such time as the Purchaser beneficially owns less than 5,555,555 Common Shares (as adjusted for stock splits, stock dividends, subdivisions and combinations of Common Shares and for purposes of this clause (ii) including any Warrant Shares underlying any unexercised portion of the Warrant then held by the Purchaser or any of its Affiliates) (the earlier of (i) or (ii), the “Restricted Period”), neither the Purchaser, nor any of its Affiliates or any BSL Affiliate (each, a “Restricted Person”) will in any manner, directly or indirectly, without the prior written consent of a majority of the Company’s directors who are independent under the rules of the Trading Market and who are not Purchaser Nominees:
(a) During other than the Standstill Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation acquisition of the transactions Shares by the Purchaser pursuant to the Series C Purchase this Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none issuance of the Elevation Entities or their respective Affiliates shallWarrant in accordance with the Transaction Documents, nor shall any the acquisition of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result Warrant Shares upon the exercise of the Beneficial Ownership of Warrant or exercise the acquisition of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from Common Shares issued by the Company pursuant to the terms Section 1.3(c) of the Series B Preferred StockStock Appreciation Right, Series C Preferred Stock acquire, offer to acquire, or Warrants (agree to acquire, directly or indirectly, by purchase or otherwise, any Equity Securities or direct or indirect rights or options to acquire any securities of any Subsidiary, or of any successor to the exercise Company, or conversion any assets of the Company or of its divisions or of any such Capital Stock rights or other securities), including successor such that in any increase in event the number of shares Purchaser’s beneficial ownership of Common Stock issuable upon Shares on a fully diluted basis, after giving effect to the conversion or exercise of all outstanding rights, options and warrants for Common Shares (which calculation shall include the Series B Preferred StockShares acquired by the Purchaser pursuant to this Agreement and either (A) in the event Company Shareholder Approval is obtained, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the Warrant Shares issuable upon the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting StockWarrant, or (B) in the event the Company Shareholder Approval is not obtained, and the Purchaser subsequently elects to acquire any Common Shares pursuant to Section 1.3(c) of the Stock Appreciation Right, such number of Common Shares to be issued in connection therewith), would result in a “change of control” as defined in the Loan Documents (as amended) or as defined in any successor definitive documentation that is entered into by the Company in connection with any refinancing of the Loan Documents;
(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the SEC), or advise or seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation voting securities of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(viic) authorize make any public announcement with respect to, or take submit a proposal for, or offer of (with or without conditions) any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy tender or ballot of any exchange offer, merger, recapitalization, reorganization or business combination or other Person other than the proxy or ballot of similar extraordinary transaction involving the Company with or any of its Subsidiaries or any of their securities or assets, on the recommendation one hand, and the Purchaser, any of its Affiliates or any BSL Affiliate, on the Boardother hand;
(viiid) form, join or in any way participate in a Group in connection with any of the foregoing;
(e) otherwise act, alone or in concert with othersothers (including by providing financing to another party), to effect seek or seek, offer to control or propose (whether publicly or otherwise) to effect control of influence the management, Board of Directors, policies or policies affairs of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii)Company;
(ixf) take advise, assist or encourage any action that results other Person in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do connection with any of the foregoing; or
(xg) publicly request (or otherwise take any action request in a manner that would or could reasonably be expected to compel require public disclosure by the Company) that the Company, directly or indirectly, amend or waive any provision of this Section 6.6. Notwithstanding anything to the contrary herein but subject to Section 6.8, during the Restricted Period (i) nothing in Sections 6.6(e) and (f) will prohibit or restrict (A) the performance by any Purchaser Nominee of any actions required in their capacity as a director of the Company to make (or as Chairman of the Board of Directors, as the case may be) or (B) the exercise of Purchaser’s rights under Sections 4.1 and 4.2 of this Agreement and (ii) in the event that a public announcement regarding third party (other than the Purchaser, any of its Affiliates or any BSL Affiliate) makes a proposal to acquire 100% of the matters Equity Securities of the Company, or all or substantially all of the assets of the Company (a “Proposal”), and the Board of Directors resolves not to pursue any discussions, negotiations or the entry into definitive documentation in connection with the Proposal and the Purchaser supports such discussions, negotiations or entry into definitive documentation, the provisions set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii6.6(d), (a)(iiie), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ixf) and (a)(xg) above shall will not be applicable apply to the Investor Stockholders (but all other provisions of this Agreement willProposal, subject to Section 4.2(c), continue to apply)including as it may be amended or modified.
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Lebow Bennett S), Securities Purchase Agreement (Borders Group Inc)
Standstill. (a) During The Chez Parties agree that, for a period of twelve (12) months following the Standstill Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreementdate hereof, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are Chez Parties will not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising consisting solely of the Investor Stockholders Chez Parties and their Permitted TransfereesAffiliates and Associates) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;.
(vb) effect The Chez Parties agree that, for a period of twelve (12) months following the date hereof, the Chez Parties, individually or seekin concert with others acting as a 13D Group will not (1) make or in any way participate in the “solicitation” of “proxies” (as such terms are used in the rules and regulations of the SEC) with respect to any Voting Securities, offer or (2) propose any stockholder resolutions under Rule 14a-8 of the Securities Exchange Act of 1934, as amended, (whether publicly or otherwise3) seek to effect any Change in Control call a meeting of stockholders of the Company;
, (vi4) effect seek to take any action by the written consent of the stockholders of the Company, or seek, offer (5) seek to advise or propose (whether publicly or otherwise) to effect influence any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction Person with respect to the Company or any voting of its Subsidiaries;the Voting Securities.
(viic) authorize The Chez Parties agree that, for a period of twelve (12) months following the date hereof, the Chez Parties, individually or take any action to permit any Affiliate of Elevation to be named in concert with others acting as a director candidate on 13D Group will not deposit any Voting Securities in a proxy voting trust or, except as otherwise provided or ballot contemplated herein, subject any Voting Securities to any arrangement or agreement with any Person with respect to the voting of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;such Voting Securities.
(viiid) The Chez Parties agree that, for a period of twelve (12) months following the date hereof, the Chez Parties, individually or in concert with others acting as a 13D Group will not otherwise act, alone or in concert with others, without the prior written consent of the Company, to effect or seek, to seek offer or propose (whether publicly or otherwise) to effect control of the management, Board board of directors (including the removal of any director) or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);Company.
(ixe) take The Chez Parties agree that, for a period of twelve (12) months following the date hereof, they will not issue any action that results communication or make any written statement, including but not limited to in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do press release or otherwise that disparages or criticizes the Company. This includes making any disparaging communications or statements about the Company or any of the foregoing; orRelease Group Members (as defined herein).
(xf) otherwise take any action that would or could reasonably be expected to compel The Chez Parties and the Company to make agree that the foregoing paragraphs (a) through (e) shall not prohibit the Chez Parties, individually or in concert with others acting as a public announcement regarding "group" as defined under Section 13(d) of the Exchange Act, or any of the matters set forth in this Section 4.2.
(b) IfChez Parties' principals, at any time during the Standstill Perioddirectors, stockholders, members, general partners and affiliates, from (i) taking any other action with respect to the Company has entered into a definitive agreement, or any Voting Securities of the consummation of which would result in a Fundamental Change, Company held by the Chez Parties or (ii) from taking any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9action (including, for so long as such condition continues to applywithout limitation, the limitation on the actions those described in clauses the foregoing paragraphs (a)(iia) through (e), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall should the Company not be applicable to the Investor Stockholders (but all other provisions comply with Section 2 of this Agreement willAgreement, subject to Section 4.2(c), continue to apply).
(c) Anything or if the Chez Parties reasonably believe that it is acting in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member best interests of the Board and in compliance with and subject to his or her fiduciary duties as a member of the BoardCompany’s shareholders.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement (Blue Calypso, Inc.)
Standstill. (a) During Buyer agrees that from the date hereof until the earlier of (i) the date of a Change of Control, (ii) the seventh anniversary of the Closing Date, (iii) the date upon which the Level 3 Holders sell to one Person, in one transaction or a series of related transactions, Voting Securities or Convertible Voting Securities representing 5% or more of the Total Voting Power (assuming the conversion, exercise or exchange of all Convertible Voting Securities held by such Person and the members of any Group of which such Person is a member) if following such sale such Person, or any Group of which such Person is a member, would beneficially own Voting Securities representing 15% or more of the Total Voting Power (assuming the conversion, exercise or exchange of all Convertible Voting Securities held by such Person and the members of any Group of which such Person is a member) and (iv) the occurrence of a Section 6.04(e) Event (the "Standstill Period"), except as required in connection with without the execution, delivery or performance of this Agreement and the consummation prior written consent of the transactions pursuant to Board of Directors, specifically expressed in a resolution adopted by a majority of the Series C Purchase Agreementdirectors of the Corporation who are not Buyer Directors, the Investor Stockholders shall not, Buyer will not and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective will not permit its Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except purchase or otherwise acquire, directly or indirectly, or agree or offer to purchase or otherwise acquire (x) as a result of the Beneficial Ownership of or exercise of except, in any Rightscase, (yA) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (this Agreement or the exercise Certificate of Designations or conversion (B) by way of any such Capital Stock rights a stock dividend, stock split, reclassification, recapitalization or other securitiessimilar event by the Corporation), including any increase Restricted Securities; provided that if the Corporation shall issue any Restricted Securities in respect of which Buyer did not have the right to purchase its pro-rata share under Section 5.07, Buyer shall be permitted to purchase in the open market or pursuant to one or more private transactions, the number of shares of Common Stock issuable upon conversion or exercise such class of the Series B Preferred Stock, Series C Preferred Stock or Warrants Restricted Securities as a result of any antiit would have been entitled to purchase if it had been entitled to purchase its pro-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect rata share of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstandingissuance under Section 5.07;
(ii) (A) solicit solicit", or participate become a "participant", directly or indirectly, in any solicitation "solicitation" of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as terms are defined in Section 12b-2 of under the Exchange Act).) from any holder of Voting Securities or Convertible Voting Securities in connection with any vote or other action on any matter or agree or announce its intention to vote with any Person
Appears in 2 contracts
Sources: Stock Purchase Agreement (RCN Corp /De/), Stock Purchase Agreement (Level 3 Telecom Holdings Inc)
Standstill. (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 Board pursuant to Section 5.8(A) resigns from the Board (the “Standstill Period”), each Stockholder will not, directly or indirectly, other than in any such Stockholder’s capacity as a member of the Board, 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 indirectly, except with the prior written approval of the Board (excluding the Sands Family Nominees):
(a) During 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 Standstill PeriodReclassification, except as required in connection with the execution, delivery or performance (2) conversions of this Agreement and the consummation existing shares of the transactions Class 1 Common Stock into shares of Class A Common Stock pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none provisions of the Elevation Entities Amended and Restated Charter, (3) annual compensation grants or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) equity compensation to such Stockholders as a result of their status as a member of the Beneficial Ownership of or exercise of any RightsBoard, (y4) for any Transfers 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, any “solicitation” (as such term is defined in Rule 14a-1 under the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities)Exchange Act, including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights otherwise exempt solicitation pursuant to Section 4.1 hereof and (zRule 14a-2(b) Equity Securities issued under the Exchange Act) to Appointed Directors vote or Investor Directors in their capacities as such, if any, (A) acquire refrain from voting any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Company Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit call or participate in any solicitation seek to call a meeting of proxies with respect to any Voting Stock, stockholders or (Biii) seek to advise or influence any Person person with respect to the voting of any Voting Stock Company Securities;
(c) other than (x) to effectuate the Investor Stockholders or any Affiliate nomination and election of the Sands Family Nominees in Section 5.8(A) or (y) other than in accordance with and such actions that are consistent with the Board’s public recommendation on any director nomination or stockholder proposal, seek the removal of any member of the Board); providedBoard (including through any “withhold” or similar campaign) or submit, that the limitation contained initiate, participate in this clause (ii) shall not apply to or knowingly encourage any director nomination or stockholder proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vid) effect propose any merger, share exchange, business combination, tender or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger)exchange offer, restructuring, liquidationrecapitalization, dissolution liquidation or similar transaction of or involving, or any sale or other transaction with respect to disposition or acquisition of a material portion of the Company or any of its Subsidiariesconsolidated assets of, the Company;
(viie) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect seek to change, control or seekinfluence, offer in any manner, the business, policies or propose (whether publicly or otherwise) to effect control of the management, Board or policies affairs of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii)its Subsidiaries;
(ixh) take publicly disclose any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal 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
(xk) otherwise take contest the validity of this Section 5.8(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 would 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 this Section 5.8(C).
(iii) During the Standstill Period:
(a) each Stockholder shall not, and shall cause its Representatives (acting 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 compel damage the Company to make a public announcement regarding any business or reputation of the matters set forth in this Section 4.2.Company; and
(b) If, at any time during the Standstill Period, (i) the Company has entered shall not, and shall cause its Subsidiaries and Representatives (acting at the direction of the Company or its Subsidiaries) not to, make any public statement that disparages or otherwise calls into a definitive agreement, disrepute the consummation Stockholders and the Family-Related Persons in any manner that could reasonably be expected to damage the business or reputation of which would result such persons. The Family-Related Persons shall be third-party beneficiaries of this Section 5.8(C)(iv)(b). The restrictions in a Fundamental Changethis Section 5.8(C) shall not (a) apply (1) in any compelled testimony or production of information in response to applicable law, or (ii2) to any Person shall have commenced and not withdrawn a bona fide public tender disclosure required by applicable law; or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues (b) prohibit any party from reporting what it reasonably believes to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and be violations of federal law or regulation to any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject governmental authority pursuant to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 21F of the Exchange Act)Act or Rule 21F promulgated thereunder.
Appears in 2 contracts
Sources: Reclassification Agreement (Sands Richard Et Al), Reclassification Agreement (Constellation Brands, Inc.)
Standstill. 7.13.1 From the date hereof until the Completion Date or earlier termination of this Agreement, the Company shall cause the business and affairs of the Company to be conducted in the normal and usual course of business. Except as contemplated by, or required for implementation of, this Agreement (including for conduct of business and affairs of the Company in the normal and usual course of business or pursuant to the annual business plan of the Company) or with the prior written consent of the Purchaser (which consent shall not be unreasonably withheld), the Company shall:
(a) During use commercially reasonable endeavours to (i) preserve intact the Standstill Periodpresent operations of the Sites and preserve its rights under the applicable Land Leases, except as required in connection (ii) preserve intact its business organization and goodwill associated with the executionSites, delivery and (iii) preserve the goodwill and business relationships with Operators, customers, vendors and others having business relationships with them relating to the Sites;
(b) neither amend, nor agree to amend, the terms of its borrowing or performance indebtedness in the nature of borrowing with terms any more adverse than those on which the Company had obtained such existing borrowing, unless otherwise required due to the transactions contemplated in this Agreement and Agreement;
(c) neither create, incur, nor agree to create nor incur Indebtedness (except pursuant to facilities disclosed to the consummation Purchaser as part of the transactions pursuant to due diligence on the Series C Purchase AgreementCompany and as updated by the Company prior the Execution Date) except in the ordinary course of business or in accordance with the Company’s business plan being in aggregate, over Rs. 500,00,00,000 (Rupees Five hundred crores). The Parties agree that the Investor Stockholders Company shall not, and without the Investor Stockholders shall ensure that none prior consent of the Elevation Entities Executive Committee, create, incur, or their respective Affiliates shall, nor shall any agree to create or incur Indebtedness (except pursuant to facilities disclosed to the Purchaser in the Company Disclosure Letter or as part of the foregoing Persons act in concert with any other Person to:
(idue diligence on the Company and as updated by the Company prior the Execution Date) except in the ordinary course of business or in accordance with the Company’s business plan, being in aggregate over Rs. 100,00,00,000 (Rupees One hundred crores) but within Rs. 500,00,00,000 (Rupees Five hundred crores). Provided, however that such additional Indebtedness as stipulated in this Clause 7.13.1(c) shall be undertaken on terms no less favourable than those contained in the existing loan agreements with the Lenders except as approved by the Executive Committee; Provided, further that nothing contained in this Clause 7.13.1(c) shall (a) prevent or restrict the Company or the Sellers from refinancing or replacing any existing borrowing listed in Schedule III that is obtained by the Company (x) as a result of without any adverse terms, conditions or costs being imposed on the Beneficial Ownership of or exercise of any RightsPurchaser in connection therewith, (y) for on terms and conditions no less favorable than the receipt refinanced or replaced borrowing, (z) from a party other than a Related Party of any Capital Stockof the Sellers; or (b) utilize or draw down any existing unutilized working capital limit already sanctioned by Lenders in favour of the Company; Provided that, rights notwithstanding anything contained herein, nothing in this Clause 7.13 shall apply to the creation of or incurring (or agreeing to create or incur) Indebtedness up to Rs. 100,00,00,000 (Rupees One hundred crores).
(d) neither sell, dispose of, nor transfer any Site (or other securities from material asset), except for (i) ordinary course sales, dispositions or transfers consistent with the Company’s treatment of dismantling for scrap not having a book value in aggregate exceeding Rs. 25,00,00,000 (Rupees Twenty Five Crores) per calender quarter, or (ii) dismantling a Site that has no Operators provided that not more than 150 Sites are dismantled in any calendar quarter, it being clarified that sales pursuant to such dismantling will be subject to the cap set out in sub-clause (i) above;
(e) commence, construct or enter into commitment to construct Towers outside the annual business plan of the Company, except with the prior consent of the Executive Committee;
(f) neither terminate any Material Contract nor enter into any new agreement or contract similar to any Material Contract (other than as provided in 7.13.1(g) below) with any Person. It is clarified that nothing contained herein shall prohibit the Company pursuant from entering into MSAs, provided such MSAs are not on terms and conditions materially adverse to the Company than the terms of the Series B Preferred Stockexisting MSAs or industry practice.
(g) not terminate any vendor contracts, Series C Preferred Stock which are Material Contracts, nor enter into any new agreement or Warrants (or the exercise or conversion of contract similar to any such Capital Stock rights or contract with any Person other securities), including any increase than in the number ordinary course of shares business. Vendor contracts, which are Material Contracts, other than in the ordinary course of Common Stock issuable upon conversion or exercise business can be entered into with the prior written consent of the Series B Preferred Stock, Series C Preferred Stock Executive Committee subject to an annual expenditure limit of Rs. 50,00,00,000 (Rupees Fifty Crores).
(h) neither cancel any debts nor waive any claims or Warrants as a result rights of material value nor reverse any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned reserves in the aggregate by the Investor Stockholders and their Affiliates (includingAudited Financial Statements as of June 30, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) 2015 other than in accordance with and consistent with the recommendation Accounting Principles;
(i) neither materially nor adversely alter any insurance policies in effect as of the Boarddate hereof for the Sites;
(j) not make or commit to any capital expenditures at any existing Sites except for any replacement capital expenditures or expenditures incurred in relation to any new Operators in the ordinary course of business or installation of new technology, or for cost saving purposes;
(k) neither enter into, nor become subject to, any Contract with any of the Company’s executive officers, or directors or stockholders (whether direct or indirect); provided, including any Contract providing for the furnishing of services to or by, providing for the rental of property, real, personal or mixed, to or from, providing for the lending or borrowing of money, providing for the leasing of property, to or from, or otherwise requiring payments, to or from, any such Person. It is clarified that the limitation contained in this clause (iiClause 7.13.1(k) shall not apply to to: (i) any proposal recommended by the Board relating to a Change in Control existing rights and obligations under employment agreements with executive officers and directors; (ii) renewal or expansion of any existing Contracts with any executive officers, directors or stockholders (whether direct or indirect) of the Company to be voted on by substantially similar terms and conditions as the existing Contracts while giving due consideration for expansion; and (iii) any new Contracts with the existing executive officers, or directors or stockholders (whether direct or indirect) of the Company’s stockholders that is , subject to an annualized aggregate limit of INR 5,00,00,000/- (Rupees Five Crores).
(l) not instituted make any material changes in the financial terms of the employment agreements of any Senior Management Employee, other than in the ordinary course of business consistent with past practice.
7.13.2 Except as contemplated by, or proposed by required for implementation of, this Agreement or with the prior written consent of the Purchaser (which consent shall not be unreasonably withheld), the Company shall:
(a) neither declare, pay nor set aside for payment any Investor Stockholder cash or non-cash dividend or other distribution in respect of any share capital , nor issue, sell, otherwise dispose of, reduce, split, repurchase nor redeem nor do such other acts in relation to its share capital or equity securities, nor reserve nor grant any options, warrants, calls, rights or commitments or any Affiliate other agreements of any Investor Stockholder character obligating it to issue any shares of share capital or any 13D Group other equity securities provided that this Clause 7.13.2 shall not apply to the payment of which any Investor Stockholder dividend or any Affiliate to the redemption or conversion of an Investor Stockholder is a memberpreference shares issued under the Investment Agreement;
(iiib) deposit neither make nor authorize any Voting Stock in a voting trust orchange, except as otherwise provided or which will have an adverse effect on the transaction contemplated herein, subject any Voting Stock to any arrangement in its certificate of incorporation or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control constitutional documents of the Company;
(vic) effect neither materially change, nor permit to be materially changed, any accounting or seekTax procedure or practice, offer or propose (whether publicly or otherwise) nor make, nor permit to effect be made, any recapitalization Tax election (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(bAgreement) Ifnor settle nor compromise any Tax liability, at any time during except as required due to a change in the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, applicable Law or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance comply with and subject to his or her fiduciary duties as a member of the Board.an Order;
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result pay all Taxes due and payable in a Change of Control manner consistent with past practice, if required by applicable Law or pursuant to an Order, except if any Tax claim is contested before any Tax Authority or other Governmental Authority;
(e) provide the Purchaser with copies of the Company in Monthly Management Financials, which shall be accompanied by the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority Company’s then current net Liabilities as of the outstanding shares end of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).such month;
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (American Tower Corp /Ma/)
Standstill. (a) Section 4.1. During the Standstill Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders Stockholder shall not, directly or indirectly, and shall cause its Representatives (to the Investor Stockholders shall ensure that none extent acting on behalf of the Elevation Entities Stockholder) and Group Members directly or indirectly not to, without the prior written consent of, or waiver by, the Company:
(a) subject to Section 4.2, acquire, offer or seek to acquire, agree to acquire or make a proposal (including any private proposal to the Company or the Board of Directors) to acquire, by purchase or otherwise, any securities (including any Equity Securities or Voting Securities, but excluding debt securities) or Derivative Instruments, or direct or indirect rights to acquire any securities (including any Equity Securities or Voting Securities, but excluding debt securities) or Derivative Instruments, of the Company or any Subsidiary or Affiliate of the Company, or any securities (including any Equity Securities or Voting Securities, but excluding debt securities) or indebtedness convertible into or exchangeable for any such securities; provided that the Stockholder may acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire Shares (and any securities (including any Equity Securities or Voting Securities, but excluding debt securities) convertible into or exchangeable for Shares) and Derivative Instruments, if, immediately following such acquisition, the collective Beneficial Ownership of Shares of the Stockholder and its Group Members, as a group, would not exceed the Standstill Level; provided that nothing in this Agreement, including in this Section 4.1(a), shall prohibit the Stockholder or any of its Group Members from making a non-public offer to the Board of Directors so long as the Stockholder or such Group Member reasonably believes that such offer will not result in the Company or the Stockholder or their respective Affiliates shallbeing required by applicable law to disclose the making of such offer promptly following the making thereof;
(b) offer, nor shall or seek to acquire, fund or participate in any acquisition of assets or business of the foregoing Persons Company and its Subsidiaries;
(c) conduct, fund or otherwise become a participant in any “tender offer” (as such term is used in Regulation 14D under the Exchange Act) involving Equity Securities, Voting Securities or any securities convertible into, or exercisable or exchangeable for, Equity Securities or Voting Securities, in each case not approved by the Board of Directors;
(d) otherwise act in concert with any other Person to:others to seek to change, control or influence the Board of Directors or stockholders, policies or management of the Company or its Subsidiaries or Affiliates;
(ie) except make or join or become a participant (xas defined in Instruction 3 to Item 4 of Schedule 14A under the Exchange Act) in (or encourage) any “solicitation” of “proxies” (as a result such terms are defined in Regulation 14A as promulgated by the SEC), or consent to vote any Voting Securities or any of the Beneficial Ownership of or exercise voting securities of any Rights, (y) for the receipt of any Capital Stock, rights Subsidiaries or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned Company (including through action by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stockwritten consent), or (B) seek to otherwise knowingly advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control securities of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder its Subsidiaries or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a memberAffiliates;
(iiif) deposit make any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person public announcement with respect to to, or solicit or submit a proposal for, or offer, seek, publicly propose or indicate an interest in (with or without conditions) or fund any merger, consolidation, business combination, “tender offer” (as such term is used in Regulation 14D under the voting Exchange Act), recapitalization, reorganization, purchase or license of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely material portion of the Investor Stockholders and their Permitted Transferees) assets, properties, securities or other group, indebtedness of the Company or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting Subsidiary or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control Affiliate of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to involving the Company, any Subsidiary of the Company or any of its Subsidiariessecurities or indebtedness, or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other Person regarding any of the foregoing;
(viig) authorize seek the election of or take any action seek or acquire right to permit any Affiliate appoint or place a representative on the Board of Elevation to be named as a director candidate on a proxy Directors or ballot seek the removal of any other Person other than director from the proxy or ballot Board of the Company with the recommendation of the BoardDirectors;
(viiih) form, join, become a member or otherwise actparticipate in a Group (other than with the Stockholder, alone any of its Group Members or any counterparty (other than a Prohibited Transferee) in concert connection with others, a Hedging Arrangement that complies with Section 2.1(c)(iv)) with respect to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies securities of the Company or any of its Subsidiaries or Affiliates;
(i) deposit any Voting Securities in a voting trust or similar Contract or subject any Voting Securities to seek any voting agreement, pooling arrangement or similar arrangement or Contract, or grant any proxy with respect to any Voting Securities (in each case, other than (i) with the Stockholder or any of its wholly-owned Subsidiaries, (ii) as part of a waiver of any provision of this Agreement Hedging Arrangement that complies with Section 2.1(c)(iv) or the voting and conversion limits set forth (iii) in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this accordance with Section 4.2(a)(viii3.1);
(ixj) make any proposal or disclose any plan, or cause or authorize any of its and their directors, officers, employees, agents, advisors and other Representatives to make any public proposal or disclose any plan on its or their behalf, inconsistent with the foregoing restrictions;
(k) knowingly take any action or cause or authorize any of its and their directors, officers, employees, agents, advisors and other Representatives to take any action on its or their behalf, that results would reasonably be expected to require the Company or any of its Subsidiaries or Affiliates to publicly disclose any of the foregoing actions or the possibility of a business combination, merger or other type of transaction or matter described in the Investor Stockholders having this Section 4.1;
(l) knowingly advise, assist, arrange or otherwise enter into any discussions or arrangements with any third party with respect to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(xm) otherwise take directly or indirectly, contest the validity of, any provision of this Section 4.1 (including this subclause) or Section 3.1 (whether by legal action that would or could reasonably be expected otherwise).
Section 4.2. Notwithstanding anything herein to compel the Company contrary, the prohibition in Section 4.1(a) shall not apply to make a public announcement regarding the activities of the Stockholder or any of its Group Members in connection with:
(a) acquisitions made as a result of a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change approved or recommended by the matters set forth in this Section 4.2.Board of Directors; or
(b) Ifacquisitions made in connection with a transaction or series of related transactions in which the Stockholder or any of its Group Members acquires a previously unaffiliated business entity that Beneficially Owns Equity Securities, Voting Securities or Derivative Instruments, or any securities convertible into, or exercisable or exchangeable for, Equity Securities, Voting Securities or Derivative Instruments, at the time of the consummation of such acquisition. Notwithstanding anything herein to the contrary, the prohibition in Section 4.1(a) shall immediately terminate, and the Stockholder and its Affiliates may engage in any time during of the Standstill Periodactivities specified in Section 4.1, in the event that
(a) the Company publicly announces that it has entered into an agreement with any Person or Group which provides for (i) the acquisition by such person or group of more than 50% of the Common Stock or all or a majority of the assets of the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any merger, consolidation or similar business combination, including as a result of a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change; involving the Company and such Person shall have commenced and not withdrawn or Group (each, a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and “Third Party Acquisition”);
(b) the Board has not recommended of Directors recommends that its stockholders reject such offer within of the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described Company tender their shares of Common Stock or vote in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part favor of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).Third Party Acquisition; or
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit any Person or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member Group (i) acquires Beneficial Ownership of more than 50% of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
outstanding Common Stock , (dii) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction makes an offer which if consummated fully subscribed would result in a Change such Person or Group acquiring Beneficial Ownership of Control more than 50% of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder outstanding Common Stock , or (iiiii) publicly announces an intention to engage in a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a memberThird Party Acquisition, in each case unless such transaction is approved by (or and, in the case of a tender clause (ii) or exchange offer, is conditioned on the receipt of tenders from(iii), the holders Company does not, within ten (10) Business Days of a majority public announcement thereof by such Person or Group, publicly oppose and/or recommend to its stockholders that they not accept such offer or support such Third Party Acquisition. Notwithstanding any of the outstanding shares foregoing, nothing in this Agreement shall restrict any of Common Stock the Stockholder’s Representatives from effecting or recommending transactions in securities (A) in the ordinary course of its business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner and (B) not Beneficially Owned by at the Investor Stockholders direct or request of the Stockholder or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)its Affiliates.
Appears in 2 contracts
Sources: Stockholders Agreement (Colfax CORP), Stockholders Agreement (Circor International Inc)
Standstill. (a) During 7.1 Each of the Standstill PeriodRemgro and SAS hereby:
7.1.1 represents and warrants to the other that, except as far as it is aware, neither it nor any member of its Group nor Bidco is, as at the date of this Agreement, required in connection with to make a mandatory offer for the execution, delivery or performance Target pursuant to Rule 9 of the Code; and
7.1.2 undertakes to the other that following the date of this Agreement (for so long as this Agreement is in force):
(i) neither it nor any member of its Group nor Bidco shall; and
(ii) it shall exercise all voting rights as shareholder and use all powers vested in it or any member of its Group as a holder of securities or through any contractual arrangements to ensure that any party acting in concert with it (as defined in the consummation Code) shall not, acquire interests in Target Shares which would result in it or any person acting in concert with it to be required to make a mandatory offer for the Target pursuant to Rule 9 of the transactions pursuant Code, provided that this Clause 7.1 shall cease to apply if a third party announces a possible or firm intention to make an offer for all or part of the Series C Purchase Agreementissued, and to be issued, share capital of the Investor Stockholders Target.
7.2 Each Consortium Member undertakes that it shall not, and it shall procure that its Concert Parties shall not:
7.2.1 tender into, accept or vote in favour of any proposed offer, scheme of arrangement or other analogous competing transaction to the Investor Stockholders shall ensure Offer in respect of any securities which it holds from time to time in the Target; or
7.2.2 sell, transfer, charge, encumber or otherwise dispose of an interest in such securities.
7.3 Each Consortium Member acknowledges and agrees that none the provisions of the Elevation Entities or their respective Affiliates shallConfidentiality Agreement continue to apply, nor shall any of in particular clause 12 (Restrictions on Share Acquisitions). Each Consortium Member warrants to the foregoing Persons act in concert with any other Person toConsortium Member that:
8.1 it has the requisite power and authority to enter into this Agreement and there is no agreement, commitment or other understanding which would preclude or restrict such Consortium Member from entering into and performing this Agreement;
8.2 this Agreement when executed will constitute valid, binding and enforceable obligations of such Consortium Member;
8.3 it has obtained the necessary corporate approvals required to enter into this Agreement; and
8.4 it is not relying on the other Consortium Member: (i) except (x) as a result of the Beneficial Ownership of for its due diligence concerning, evaluation of, or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant decision to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase invest in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board)Target Group; provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender with respect to tax or exchange offer which if consummated would result other economic considerations involved in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply)investment.
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 2 contracts
Sources: Consortium Bid Conduct Agreement, Consortium Bid Conduct Agreement
Standstill. (a) During Each Investor agrees that, for the Standstill Period, except as required in connection with period commencing on the execution, delivery or performance date of this Agreement and ending on the consummation earliest of (i) the thirtieth (30th) calendar day preceding the opening of the transactions pursuant nomination window for submission of director nominees at the Company’s 2021 Annual Meeting, (ii) a material breach by the Company of its obligations under this Agreement which is not cured within five (5) business days after written notice from any Investor, (iii) an announcement by the Company of any type of transaction involving a change of control in the Company and (iv) the adoption by the Board of any amendment to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act organizational documents of the Company 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 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 any other Person toothers:
(i) except submit any stockholder proposal (xpursuant to Rule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) as a result or any notice of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights nomination or other securities from the Company pursuant business for consideration, or nominate any candidate for election to the terms Board (including by way of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion Rule 14a-11 of any such Capital Stock rights or other securitiesRegulation 14A), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants other than as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate expressly permitted by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares OutstandingAgreement;
(ii) engage in, directly or indirectly, any “solicitation” (Aas defined in Rule 14a-1 of Regulation 14A) solicit or participate in any solicitation of proxies with respect (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 any Voting Stockthe recommendation or proposal of the Board, or (B) recommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise advise, encourage or influence any Person other person with respect to the voting of any Voting the Common Stock (other than (xincluding any withholding from voting) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to grant a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person proxy with respect to the voting of such Voting Stockthe Common Stock or other voting securities to any person other than to the Board or persons appointed as proxies by the Board;
(iviii) join seek to call, or to request the call of, a 13D Group (other than a group comprising solely special meeting of the Investor Stockholders and their Permitted Transferees) or other groupCompany’s stockholders, or otherwise act in concert with make a request for a list of the Company’s stockholders or for any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control books and records of the Company;
(viiv) effect form, join in or seekin any other way participate in a “partnership, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger)limited partnership, restructuring, liquidation, dissolution syndicate or other transaction group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Company Common Stock or deposit any shares of its SubsidiariesCommon 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;
(viiv) authorize vote for any nominee or take any action nominees for election to permit any 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 of Elevation to be named as a director candidate or nominee on a proxy the Board or ballot seek the removal of any other Person other than the proxy or ballot member of the Company with Board or a change in the recommendation size or composition of the Board;
(viiivii) otherwise actacquire or agree, alone or in concert with othersoffer, to effect or seek, offer seek or propose to acquire, or cause to be acquired, ownership (whether publicly or otherwiseincluding beneficial ownership) to effect control of any of the management, Board assets or policies business of the Company or any rights or options to seek acquire any such assets or business from any person, in each case other than securities of the Company;
(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) with respect to, or solicit, or negotiate with or provide any information to any person with respect to, a waiver merger, consolidation, acquisition of any provision control or other business combination, tender or exchange offer, purchase, sale or transfer of this Agreement assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the voting and conversion limits set forth Board, change in the Series B Certificate executive officers of Designation and Series C Certificate 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 Designation; providedcontrol of the Company (it being understood that the foregoing shall not restrict the Investors from tendering Common Stock, howeverreceiving 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 no action has been approved by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viiithe Board);
(ix) take acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of (A) any action that results interests in the Investor Stockholders having Company’s indebtedness or (B) 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 similar corporate action initiated by the Company with respect to file or amend a Schedule 13D indicating an intention, plan or proposal to do any securities beneficially owned by any of the foregoingInvestors or their Affiliates); orprovided, however, nothing herein shall prevent any Investor from confidentially seeking a waiver from this provision;
(x) short sell the Company’s capital stock, or otherwise take pledge, hypothecate or put any action liens against the Company’s capital stock, except that would an Investor may partake in customary margin transactions with a broker regulated by FINRA;
(xi) disclose publicly, or privately in a manner that could reasonably be expected to compel become public, any intention, plan or arrangement inconsistent with the Company to make a public announcement regarding foregoing;
(xii) take any action challenging the validity or enforceability of any provisions of this Section 3; or
(xiii) enter into any agreement, arrangement or understanding concerning any of the matters set forth in foregoing (other than this Section 4.2.
(bAgreement) If, at or encourage or solicit any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) person to undertake any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Boardforegoing activities.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 1 contract
Standstill. Without the prior written consent of Placement Agent, from the date hereof until seventy-five (75) 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 Common Stock or common stock equivalents, other than an Exempt Issuance or (ii) file any registration statement or any amendment or supplement thereto. For purposes of this Agreement, “Exempt Issuance” means the issuance of (a) During the Standstill Periodshares of Common Stock or options to employees, except as required in connection with the execution, delivery officers or performance directors of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms any share or option plan duly adopted for such purpose, by a majority of the Series B Preferred Stocknon-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, Series C Preferred Stock or Warrants (or b) securities upon the exercise or exchange of or conversion of any securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such Capital Stock rights or other securities), including any securities have not been amended since the date of this Agreement to increase in the number of shares such securities or to decrease the exercise price, exchange price or conversion price of Common Stock issuable upon conversion such securities (other than in connection with stock splits or exercise combinations) or to extend the term of such securities, (c) the securities of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights Company issued pursuant to Section 4.1 hereof the Purchase Agreements and (zd) Equity Securities securities issued pursuant to Appointed Directors acquisitions or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership strategic transactions approved by a majority of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect disinterested directors of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill LimitCompany, provided that for purposes such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of calculating any registration statement in connection therewith during the number of shares of Common Stock Beneficially Owned by the Investor Stockholders prohibition period in Section 14 herein and their Affiliates, there provided that any such issuance shall only be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent Person (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting equityholders of any Voting Stock (other than (xa Person) the Investor Stockholders which is, itself or any Affiliate through its subsidiaries, an operating company or (y) other than an owner of an asset in accordance with and consistent a business synergistic with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control business of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect and shall provide to the voting Company additional benefits in addition to the investment of such Voting Stock;
(iv) join funds, but shall not include a 13D Group (other than a group comprising solely of transaction in which the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person Company is issuing securities primarily for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company raising capital or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth an entity whose primary business is investing in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2securities.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 1 contract
Sources: Placement Agency Agreement (Abundia Global Impact Group, Inc.)
Standstill. (a) During Seagate hereby agrees that, until the Standstill Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation fifth anniversary of the transactions pursuant to the Series C Purchase AgreementEffective Date, the Investor Stockholders shall Seagate will not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person towithout Newco's prior written consent:
(i) except acquire, or enter into discussions, negotiations, arrangements or understandings with any third party to acquire, beneficial ownership (xas defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for Newco securities entitled to vote with respect to the receipt election of any Capital directors of Newco ("VOTING STOCK"), any securities convertible into, exchangeable for or exerciseable for, or that may otherwise become, Voting Stock, rights or any other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, right to acquire Equity Securities, in each caseVoting Stock, if the effect of such acquisition would be that Seagate would then beneficially own and/or have the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up right to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one acquire more than [__] percent (1__%) of the Diluted Common Shares OutstandingVoting Stock (the "STANDSTILL PERCENTAGE");
(ii) (A) solicit make, or participate in any solicitation way participate in, any "solicitation" of proxies with respect to any Voting Stock"proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act, or (Bas such Regulation is currently in effect) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) if Newco is at the Investor Stockholders or any Affiliate or (y) other than in accordance with time of such solicitation publicly-traded and consistent with subject to the recommendation of proxy rules promulgated under the Board)Exchange Act; provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;or
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, either alone or in concert with others, to effect control the Newco Board or seekthe policies of Newco. Notwithstanding the foregoing, offer nothing herein shall limit Seagate's ability to exercise its rights under Section 5 hereof. For purposes of this Section 4, any shares of Newco Common Stock or propose options or rights to acquire such Newco Common Stock acquired by Seagate Affiliates who are also employees or directors of Newco pursuant to Newco's option and employee stock purchase plans (whether publicly or otherwise) including any options to effect control purchase Newco securities issued to such persons under the terms of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as suchPlan) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in excluded from the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any calculation of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any number of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Voting Stock not Beneficially Owned held by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)Seagate.
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) such period, the “Standstill Period”), without the prior written consent of the Company, the 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 the 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, except as required in connection with without the execution, delivery or performance of this Agreement and the consummation prior written consent of the transactions pursuant to the Series C Purchase AgreementCompany, the Investor Stockholders shall notExecutive covenants and agrees that he will not at any time, and the Investor Stockholders shall ensure that none of the Elevation Entities directly or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person toindirectly:
(i) except (x) as a result of the Beneficial Ownership of enter into, agree to enter into, commence or exercise of submit any Rightsmerger, (y) for the receipt of any Capital Stockconsolidation, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer offer, business combination, share exchange, recapitalization, restructuring or other offer or proposalextraordinary transaction involving any of the Ashford-Related Entities, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) subsidiary or division thereof, or any of their respective securities or assets or take any action that would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall reasonably be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates expected to require any of the Investor Stockholders that are not also Beneficially Owned by Ashford-Related Entities to make a public announcement regarding the Investor Stockholders, up to a maximum number possibility of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstandingany such transaction;
(ii) tender any equity securities of the Ashford-Related Entities into a tender or exchange offer commenced by a third party other than a tender or exchange offer that the Board of Directors of one of the 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 changed such recommendation (Aand in the case of such a withdrawal or change of recommendation, it shall not be a breach of this clause (ii) solicit if the tendered or participate exchanged securities are withdrawn prior to the expiration of such tender or exchange offer);
(iii) (x) make, or in any solicitation way participate in, any “solicitation” of proxies with respect “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission (the “SEC”) promulgated pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) to vote any Voting Stocksecurities 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, (By) seek to advise or influence any Person person with respect to the voting of any Voting Stock securities of any of the Ashford-Related Entities (other than (x) to vote as recommended by Board of Directors of any of the Investor Stockholders or any Affiliate Ashford-Related Entities), or (yz) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to grant any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person proxy with respect to any equity interests of any of the voting Ashford-Related Entities (other than to the applicable Ashford-Related Entity or a person specified by such Ashford-Related Entity in a proxy card provided to stockholders of such Voting StockAshford-Related Entity);
(iv) form, join or in any way participate in a 13D Group “group” (other than a group comprising solely as that term is used for purposes of Rule 13d-5 or Section 13(d)(3) of the Investor Stockholders and their Permitted TransfereesExchange Act) or other group, or otherwise act in concert with respect to any third Person for equity securities of any of the purpose of acquiring, holding, voting or disposing of Voting Stock or NonAshford-Voting Convertible SecuritiesRelated Entities;
(v) effect form or seekpublicly disclose any intention, offer plan or propose (whether publicly or otherwise) arrangement to effect change any Change in Control of the Companymembers of the Board of Directors or executive officers of any of the Ashford-Related Entities, any of the executive officers of any Ashford-Related Entity, or any of the governing documents of any of the Ashford-Related Entities;
(vi) effect call, request the calling of, or seekotherwise seek or submit a written request for the calling of a special meeting of, offer or propose (whether publicly or otherwise) to effect initiate any recapitalization (other than stockholder proposal for the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company election of any director or any other action by, the stockholders of its Subsidiariesany of the Ashford-Related Entities;
(vii) authorize make a public announcement in connection with seeking to influence or take any action to permit any Affiliate control the management of Elevation to be named as a director candidate on a proxy the Board of Directors, or ballot the policies, affairs or strategy of any other Person other than the proxy or ballot of the Company with the recommendation of the BoardAshford-Related Entities;
(viii) otherwise actform or disclose any intention, alone plan or in concert arrangement inconsistent with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii)foregoing;
(ix) take advise, assist or encourage, or enter into any action that results arrangements with, any other persons in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding connection with any of the matters set forth in this Section 4.2.10(c); or
(bx) If, at any time during the Standstill Period, (i) publicly request the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, to amend or (ii) waive any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions provision of this Agreement will, subject to Section 4.2(c), continue to apply10(c).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 1 contract
Sources: Employment Agreement (Ashford Inc.)
Standstill. (a) During Except as provided in Section 4.1(b), from the Closing until three months after no DSM Nominee serves on the Board (the “Standstill Period”), except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders DSM shall not, and nor shall it permit DSM Parent or any of its other Subsidiaries or controlled Affiliates to, directly or indirectly, without the Investor Stockholders shall ensure that none prior consent of the Elevation Entities or their respective Affiliates shall, nor shall any Company (acting through a resolution of the foregoing Persons act in concert with any other Person to:Company’s Non-DSM Directors):
(i) except acquire or agree to acquire, whether by purchase, tender or exchange offer, by forming, joining or otherwise participating in a partnership, syndicate or other Group, through the use of a derivative instrument or voting agreement, or otherwise, (xA) as a result of the Beneficial Ownership of additional Voting Securities or Convertible Securities after the Closing that would result in DSM Parent (together with its Subsidiaries or controlled Affiliates and any parties acting as members of a Group with DSM), having Beneficial Ownership of more than 33.0% in the aggregate of the shares of Voting Securities outstanding at such time (assuming (1) the exercise of any Rights, (y) all of then-outstanding Warrants for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the maximum number of shares of Common Stock issuable upon thereunder, regardless of whether such Warrants are then exercisable, (2) the conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or Shares for the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will issuable thereunder, regardless of whether such Shares are then convertible, and (3) the exercise or conversion, as applicable, of any Tranche II Securities for the maximum number of shares of Common Stock issuable thereunder, regardless of whether such Tranche II Securities are then exercisable or convertible, as the case may be, which number of shares shall be excluded included in the numerator and denominator for purposes of determining the percentage of Voting Securities Beneficially Owned by DSM Parent (together with its Subsidiaries and controlled Affiliates and any parties acting as members of a Group with DSM) for purposes of this clause (A)), except pursuant to Section 4.2 or Section 6.4 of this clause equal Agreement, pursuant to one percent (1%) the exercise of the Diluted Common Shares OutstandingWarrants or any warrants that constitute Tranche II Securities, pursuant to the Securities Purchase Agreement or pursuant to the Company’s Certificate of Designation of Preferences, Rights and Limitations of Series B 17.38% Convertible Preferred Stock, or (B) any direct or indirect ownership interest in any indebtedness or debt securities of the Company or any of its Subsidiaries, except pursuant to Section 4.2 of this Agreement;
(ii) (A) solicit make, or participate in any solicitation way participate, directly or indirectly, in any “solicitation” of proxies with respect “proxies” (as such terms are used in the rules of the SEC) to any vote Voting StockSecurities, or (B) seek to advise or knowingly influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate Securities or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iiiC) deposit any Voting Stock Securities in a any voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock Securities to any arrangement or agreement with any Person with respect to the voting of such any Voting StockSecurities, except for this Agreement;
(iii) make any public announcement of a proposal or offer (with or without conditions) with respect to any extraordinary transaction involving DSM Parent or its Subsidiaries or controlled Affiliates and the Company including, without limitation, any tender offer, merger, consolidation or business combination;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) seek to effect any Change in Control recapitalization, reclassification, liquidation or dissolution of the Company;
(viv) effect or seek, offer or propose (whether publicly or otherwise) to effect disclose any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do arrangement by DSM regarding the possibility of any of the foregoing; orevents described in clauses (i) through (iv) above;
(xvi) otherwise knowingly take any action that would or could reasonably be expected to compel require either the Company or DSM under applicable law or the rules of the principal exchange on which the Company’s Common Stock is then listed or traded to make a public announcement regarding the possibility of any of the matters set forth events described in this Section 4.2clauses (i) through (iv) above; or
(vii) enter into any discussions, negotiations, agreements or understandings with any other third Person (excluding DSM’s advisors) with respect to any of the foregoing.
(b) IfNotwithstanding the foregoing, at any time during the Standstill Periodrestrictions contained in Section 4.1(a) shall not (1) apply with respect to the designation of the DSM Nominees in accordance with this Agreement, (i2) the Company has entered into prevent a definitive agreement, the consummation of which would result DSM Director from taking any action in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties capacity as a member director of the Board.
Company, (d3) The Investor Stockholders agree that during prohibit DSM Parent or any of its Subsidiaries or controlled Affiliates from voting its Voting Securities in its discretion, (4) apply to the Standstill Period they will not directly acquisition of securities in or indirectly propose, effect control of another Person (including by way of merger or agree consolidation) or (5) apply to any transaction which if consummated acquisitions or investments by any bona fide employee benefit plan of DSM Parent or its Subsidiaries or controlled Affiliates. In addition, the restrictions contained in Section 4.1(a) shall not prevent a private communication to the Board to the extent that such private communication would result in not reasonably be expected to require a public disclosure prior to any public announcement by the Company that it (or its Board) has approved or entered into an agreement with respect to a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder Transaction or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)Fundamental Transaction.
Appears in 1 contract
Sources: Stockholder Agreement (Amyris, Inc.)
Standstill. During the Standstill 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) During the Standstill Perioddirectly or indirectly, except as required in connection with the execution, delivery or performance acquire beneficial ownership of this Agreement and the consummation Shares of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Then Outstanding Common Stock issuable upon conversion or exercise of the Series B Preferred Stockand/or Common Stock Equivalents, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offertender, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each caseShares of Then Outstanding Common Stock and/or Common Stock Equivalents, if after giving effect to such acquisition, the effect of such acquisition Standstill Parties would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed beneficially own more than the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate notwithstanding the provisions of this Section 4.2(a)(viii3.1(a);
(ix) take , 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 required to dispose of any of their holdings of Shares of Then Outstanding Common Stock even though such action that results resulted in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of Standstill Parties’ beneficial ownership totaling more than the foregoingStandstill Limit; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934.
(b) If, at any time during the Standstill Perioddirectly or indirectly, (i) seek to have called any meeting of the Company stockholders of the Company, (ii) propose or nominate for election to the Company’s Board of Directors any person whose nomination has entered into not been approved by a definitive agreementmajority of the Company’s Board of Directors (excluding the Designated Director, if any) or (iii) unless a person referred to in the foregoing clause (ii) is nominated by a third party in connection with such party’s publicly announced and not withdrawn Acquisition Proposal (in which case the provisions of Section 5.1 shall apply to permit the Standstill Parties to either vote in accordance with the recommendation of the Company’s Board of Directors or in the same proportion as the votes cast by all other holders of all classes of voting securities of the Company), fail to cause to be voted in accordance with the recommendation of the Company’s Board of Directors with respect to such person for election to the Company’s Board of Directors any Shares of Then Outstanding Common Stock;
(c) directly or indirectly, encourage or support a tender, exchange or other offer or proposal by any other Person or group (an “Offeror”) the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company (an “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, Investor shall not be prohibited from taking any of the actions otherwise prohibited by this Section 3.1(c) for so long as the Company maintains and does not withdraw such recommendation;
(d) directly or indirectly, solicit proxies or consents or become a participant in which a solicitation (as such terms are defined in Regulation 14A under the acquiring counterparty is Exchange Act) in opposition to the recommendation of a majority of the Company’s Board of Directors with respect to any matter, or seek to advise or influence any 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 subject any Shares of Then Outstanding Common Stock to any arrangement or agreement with respect to the voting of such Shares of Then Outstanding Common Stock;
(f) propose (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a memberany merger, in each case unless such transaction is approved by (or in the case of a consolidation, business combination, tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority purchase of the outstanding shares Company’s assets or businesses, or 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 Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 13(d)(3) of the Exchange Act;
(h) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (g) above; or CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934.
(i) request or propose to the Company’s 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)); provided, however, that (A) nothing contained in this Section 3.1 shall prohibit the Investor from making confidential, non-public proposals to, or entering into confidential, non-public discussions, negotiations, arrangements or agreements with, the Company and with third parties with the express authorization of the Company, which the Investor or any Affiliate may request in a confidential, non-public manner, regarding a transaction or matter of the type described in the foregoing clauses (a) and (f), (B) the mere voting in accordance with Section 5 hereof of any voting securities of the Company held by the Investor or its Affiliates shall not constitute a violation of any of clauses (a) through (h) above, and (C) 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, non public 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 and its stockholders.
Appears in 1 contract
Standstill. (a) During Until the Standstill Period, except as required in connection with earliest to occur of (A) the execution, delivery or performance of this Agreement and the consummation ---------- tenth anniversary of the transactions purchase of the Senior Preferred Stock pursuant to the Series C Preferred Stock Purchase Agreement, (B) the Investor Stockholders date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and (ii) less than 10% of the Actual Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders; provided that the Shareholders at such time are entitled to designate not more than one director pursuant to Article 3 hereof, and (C) termination under Section 2.2 (such period, the "Standstill Period") (provided ----------- ----------------- -------- that the Standstill Period shall end (x) with respect to the DLJ Shareholders, on the date on which the DLJ Shareholders no longer own any shares of Senior Preferred Stock or any Conversion Shares, and (y) with respect to the Greenwich Street Shareholders, on the date on which the Greenwich Street Shareholders no longer own any shares of Senior Preferred Stock or any Conversion Shares), each Shareholder will not, and the Investor Stockholders shall ensure that none will cause each of the Elevation Entities its Affiliates (other than Exempt Affiliates) not to, directly or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person toindirectly:
(i) except (x) as a result of the Beneficial Ownership of acquire, offer to acquire, or exercise of agree to acquire, by purchase or otherwise, any Rights, (y) for the receipt of any Capital Stock, Voting Securities or voting rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock direct or Warrants (or the exercise or conversion of any such Capital Stock indirect rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant options to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership Voting Securities of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
Affiliates other than (viiA) authorize the exercise of convertible securities acquired in compliance with the terms of this Agreement (including the acquisition of shares of Common Stock or take Junior Preferred Stock upon conversion of shares of Senior Preferred Stock), or an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Senior Preferred Stock which are subject to the Preferred Stock Purchase Agreement, (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer of the Company, acquisitions by the Apollo/Blackstone Shareholders of up to a collective aggregate amount of 3,000,000 shares (as such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any action other recapitalization of the Company) of Common Stock, (D) stock options or similar rights granted by the Company to permit any an Affiliate of Elevation to be named such Shareholder as compensation for performance as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies officer of the Company or its subsidiaries (and any shares issuable upon exercise thereof), (E) transfers between such Shareholder and Related Transferees as permitted under Section 4.1(f) or (F) any rights which are -------------- granted to seek a waiver all shareholders of the Company (and any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designationshares issuable upon exercise thereof); provided, however, that if the Shareholders or any of -------- ------- their Affiliates in good faith inadvertently acquire not more than 500,000 shares of Common Stock in violation of these provisions and within 15 days after the first date on which the Shareholders have actual knowledge (including by way of written notice given by the Company) that a violation has occurred Shareholders or any of their Affiliates shall have transferred any shares of Common Stock held in violation of these provisions to unrelated third parties so that the Shareholders and their Affiliates no action by an Appointed Director longer beneficially own any such shares or Investor Director (solely in their capacities as such) have any agreement or understanding relating to such shares, this Section 2.1 shall be deemed to violate ----------- not have been violated; and provided, further, that no violation of this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having -------- ------- provision shall be deemed to file or amend a Schedule 13D indicating an intention, plan or proposal to do any have occurred by reason of the foregoing; or
indirect acquisition of beneficial ownership of securities resulting from (x) otherwise take any action that would investments in investment funds as to which no Shareholder or could reasonably be expected Affiliate thereof has control or power to compel the Company control with respect to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, voting or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).investment decisions or
Appears in 1 contract
Sources: Shareholder Agreement (Apollo Investment Fund Iii Lp)
Standstill. Without the prior written consent of Placement Agent, from the date hereof until thirty (30) 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 Common Stock or common stock equivalents, other than an Exempt Issuance or (ii) file any registration statement including a registration statement on Form S-8 in connection with any employee benefit plan, or any amendment or supplement thereto. For purposes of this Agreement, “Exempt Issuance” means the issuance of (a) During the Standstill Periodshares of Common Stock or options to employees, except as required in connection with the execution, delivery officers or performance directors of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms any share or option plan duly adopted for such purpose, by a majority of the Series B Preferred Stocknon-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, Series C Preferred Stock or Warrants (or b) securities upon the exercise or exchange of or conversion of any securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such Capital Stock rights or other securities), including any securities have not been amended since the date of this Agreement to increase in the number of shares such securities or to decrease the exercise price, exchange price or conversion price of Common Stock issuable upon conversion such securities (other than in connection with stock splits or exercise combinations) or to extend the term of such securities, (c) the securities of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights Company issued pursuant to Section 4.1 hereof the Purchase Agreements and (zd) Equity Securities securities issued pursuant to Appointed Directors acquisitions or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership strategic transactions approved by a majority of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect disinterested directors of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill LimitCompany, provided that for purposes such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of calculating any registration statement in connection therewith during the number of shares of Common Stock Beneficially Owned by the Investor Stockholders prohibition period in Section 14 herein and their Affiliates, there provided that any such issuance shall only be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent Person (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting equityholders of any Voting Stock (other than (xa Person) the Investor Stockholders which is, itself or any Affiliate through its subsidiaries, an operating company or (y) other than an owner of an asset in accordance with and consistent a business synergistic with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control business of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect and shall provide to the voting Company additional benefits in addition to the investment of such Voting Stock;
(iv) join funds, but shall not include a 13D Group (other than a group comprising solely of transaction in which the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person Company is issuing securities primarily for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company raising capital or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth an entity whose primary business is investing in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2securities.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 1 contract
Standstill. Until the "Standstill Termination Date" (aas hereinafter defined), Purchaser and its affiliates (which for purposes hereof shall not include Penske or any of its subsidiaries) During will not, directly or indirectly, without the Standstill Periodexpress permission of the Corporation's Board of Directors, except as required (A) purchase or offer to purchase any of the Corporation's equity securities (or securities convertible into the Corporation's equity securities), (B) conduct a "proxy contest" to obtain control of the Corporation's Board, or (C) enter into any non-market transaction to sell Common Stock to any person or entity which does not agree in connection with writing (in form reasonably acceptable to the executionCorporation) to be subject to and bound by the provisions of this Section 4.10; PROVIDED, delivery or performance HOWEVER, that nothing herein shall limit the right of the Purchaser and its affiliates to (i) purchase securities pursuant to, and exercise all other rights contemplated by, this Agreement and the consummation "Right of First Refusal Agreement" being executed in connection herewith, (ii) purchase additional Common Stock that does not represent more than 5% of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of Corporation's aggregate outstanding shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting extent limited by the Right of such Voting Stock;
First Refusal Agreement, vote shares and exercise rights as directors and/or (iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders if and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, only if Purchaser owns at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority least 10% of the outstanding shares of the Corporation's Common Stock by reason of (A) purchases pursuant to this Agreement on or about the date hereof, and (B) purchases pursuant to the Right of First Refusal Agreement, purchase additional Common Stock that, together with such purchases and purchases made pursuant to the preceding clause (ii), represents in the aggregate not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 more than 20.5% of the Exchange ActCorporation's aggregate outstanding shares of Common Stock (it being agreed that any purchases pursuant to this item (iv) shall reduce on a one-for-one basis the number of shares that Purchaser is entitled to purchase under the Right of First Refusal Agreement); PROVIDED, FURTHER, that the provisions of this Section 4.10 shall automatically terminate in full if (x) the Corporation enters into a merger, asset purchase, business combination or similar agreement pursuant to which the Corporation's shareholders would own less than fifty percent (50%) of the surviving corporation's capital stock, or (y) a tender offer or exchange offer commences for the Corporation's equity securities. For purposes hereof, "Standstill Termination Date" means the earlier of (A) the sixth anniversary of the date of this Agreement, and (B) the date that Christopher R. Pook no longer serves as Chief Executive Officer of the ▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇ within 120 days of the termination of Mr. Pook's service a successor is appointed who is approved by Purchase▇, ▇▇▇▇▇ ▇pproval shall not be unreasonably withheld or delayed).
Appears in 1 contract
Standstill. For two years after the Closing Date, none of Buyer, the JEDI Entities or their respective Subsidiaries (a) During will purchase any additional shares of Common Stock, or securities convertible into or exchangeable for shares of Common Stock, other than (i) in transactions approved by the Standstill PeriodBoard of Directors of Seller, except as required (ii) the purchase of shares of Common Stock in connection with the executionGrand Gulf Transaction acquisition, delivery or performance (iii) the purchase of this Agreement and the consummation shares of the transactions Common Stock pursuant to the Series C Purchase Agreementprovisions of Section 8.12 hereof, the Investor Stockholders shall notor (iv) an Inadvertant Purchase, and (b) make or participate in making any solicitation of proxies to vote Common Stock of Seller or form, join or participate in a "group" for the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any purpose of the foregoing Persons act in concert with any other Person to:
(i) except without the approval of the Board of Directors of the Seller. Notwithstanding anything herein to the contrary, the provisions of this Section 8.5 shall terminate and have no further force or effect if (x) at any time in which Buyer and its Affiliates hold more than 14% of the issued and outstanding shares of Common Stock, less than two designees of Buyer are elected to 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 range of 7% through 14% of the issued and outstanding shares of Common Stock, 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 (including as a result of the Beneficial Ownership 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 any Rightssuch rights might influence management, (y) for the receipt Board of any Capital Stock, rights Directors or other securities from the Company pursuant to stockholders of Seller. Buyer agrees that in the terms event that it transfers more than 10% of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of issued and outstanding shares of Common Stock issuable upon conversion or exercise (determined as of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect time of such acquisition would transfer), then the transferee of such shares shall be that the Common Stock Beneficially Owned in the aggregate bound by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters restrictions set forth in this Section 4.2.
(b) If, 8.5 to the extent the same are in full force and effect at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as of such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply)transfer.
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 1 contract
Standstill. (a) During the Standstill Period, except as required in connection with the execution, delivery or performance Other than shares of Preferred Stock which it is purchasing pursuant to this Agreement and the consummation of the transactions pursuant to the Series C Purchase AgreementConversion Shares issuable upon conversion thereof, the Investor Stockholders shall Enzon hereby covenants and agrees that it will not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall will it permit any of the foregoing Persons act in concert with any other Person to:
its subsidiaries (i) except (x) as a result to purchase or otherwise acquire, directly or indirectly, any equity securities of the Beneficial Ownership of Company (or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant options to the terms of the Series B Preferred Stock, Series C Preferred Stock purchase such securities) or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit form, join or participate in any solicitation a "group" (as defined in the Securities Exchange Act of proxies with respect to any Voting Stock, or (B1934 and the rules promulgated thereunder) seek to advise or influence any Person with respect to the voting beneficial ownership of any Voting Stock equity securities of the Company without the prior approval of the Company. Notwithstanding the foregoing, Enzon may, for purposes of any hedging or similar transaction, purchase, sell or otherwise acquire or dispose of options or other derivative securities having the same economic effect as a purchase of the Company's equity securities (other than "Derivative Securities"); provided that (xi) neither Enzon, its subsidiaries nor any group which Enzon has formed, joined or participated in shall file a Schedule 13D indicating its intention to assume control of the Company, and (ii) the Investor Stockholders aggregate amount of equity securities which Enzon acquires or any Affiliate or (y) other than in accordance with and consistent with the recommendation has a right to acquire pursuant to such Derivative Securities at no time shall exceed 50% of the Boardmaximum number of Conversion Shares issuable upon conversion of the Preferred Stock at the Closing Date (assuming, solely for purposes of the foregoing, that the Preferred Stock is convertible at the Closing Date at a conversion price equal to 125% of the Closing Price (as defined in the Certificate of Designation)). This Section 5.2 shall terminate and be of no further force or effect five (5) years from the Closing or such earlier date as shall be agreed to by the Company; provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in 5.2 shall automatically terminate upon the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do occurrence of any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, following events: (i) the Company filing with the SEC of a Schedule 13D by any person or entity indicating that a person or entity has entered into a definitive agreement, acquired (a) more than 33% of any class of the consummation of which would result in a Fundamental ChangeCompany's voting equity securities, or (iib) has acquired at least 5% of any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member class of the Board and in compliance with and subject Company's voting equity securities which Schedule 13D expresses the filing party's intention to his or her fiduciary duties as a member assume control of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly Company, whether by tender offer, merger, proxy contest or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or otherwise; (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case commencement of a tender offer by any person or exchange offer, entity to acquire 33% or more of the Company's outstanding voting equity securities; or (iii) the solicitation of proxies by any party other than the Company which is conditioned on intended to effect a change in the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 members of the Exchange Act)Company's Board of Directors.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Inhale Therapeutic Systems Inc)
Standstill. (a) During the Standstill Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation As of the transactions pursuant date hereof, you hereby represent and warrant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure Company that none neither you nor any of your Representatives acting on your behalf or affiliates owns any securities of the Elevation Entities or their respective Affiliates shall, nor shall any Company. You agree that beginning on the date hereof and ending on the earliest of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result one year from the date of the Beneficial Ownership of or exercise of any Rightsthis letter agreement, (y) for the receipt time at which the Company enters into a definitive agreement with respect to (i) the acquisition, directly or indirectly, of any Capital Stock, rights more than fifty percent (50%) of the Company’s outstanding common stock (or other securities from 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 pursuant to 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 terms case of the Series B Preferred Stockany transaction covered by this clause (ii), Series C Preferred Stock or Warrants immediately following such transaction, any person (or the exercise direct or conversion indirect shareholders of any such Capital Stock rights person) or group will beneficially own more than fifty percent (50%) of the Company’s outstanding common stock (or other securitiessecurities 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), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors a person or Investor Directors in their capacities as such, if any, group (AI) acquire any Economic Right or Beneficial Ownership of Equity Securities or acquires (B) authorize or make a whether via tender offer, exchange offer or other otherwise) or (II) has commenced a tender offer or proposal, whether oral or written, to acquire Equity Securities, in each caseexchange offer under Rule 14(d) of the 1934 Act that, if the effect of such acquisition completed in accordance with its terms, would be that the Common Stock Beneficially Owned result in the aggregate by the Investor Stockholders and their Affiliates (includingacquisition of, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one more than fifty percent (150%) of the Diluted Common Shares Outstanding;
Company’s outstanding common stock (iior other securities representing more than fifty percent (50%) of the aggregate voting power of securities entitled to vote in an election of directors) (A) solicit or participate the “Standstill Period”), unless specifically invited in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended writing by the Board relating to a Change in Control of Directors of the Company to be voted on (or by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely Representative of the Investor Stockholders Company on behalf of the Board of Directors), neither you nor any of your affiliates who receive Evaluation Material and their Permitted Transferees) are acting on your behalf or IAC/InterActiveCorp October 14, 2019 on behalf of other group, or otherwise act persons acting in concert with you will in any third Person for the purpose of acquiringmanner, holding, voting directly or disposing of Voting Stock or Non-Voting Convertible Securities;
indirectly: (va) effect or seek, offer or propose (whether publicly or otherwise) to effect effect, or announce any Change in Control of the Company;
(vi) intention to effect or seekcause or participate in or in any way knowingly assist, offer facilitate or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of encourage any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or beneficial ownership thereof), or any material assets, indebtedness or 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 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 affiliates; (b) form, join or in any way participate in a “group” (as defined under the ▇▇▇▇ ▇▇▇) with respect to the Company or otherwise act in concert with any person in respect of any such securities; (c) otherwise act, alone or in concert with others, to seek representation on or to control of or influence the management, Board of Directors or policies of the Company or to seek a waiver obtain representation on the Board of any provision Directors of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of DesignationCompany; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ixd) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that which would or could would reasonably be expected to compel force the Company to make a public announcement regarding any of the types of matters set forth in this Section 4.2.
(ba) Ifabove; or (e) enter into any discussions or arrangements with any third party (other than your Representatives) with respect to any of the foregoing; provided, at that the foregoing obligations shall not apply to any time during 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 Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Changeother party or such other party’s Representatives that does not have knowledge of, or access to, any Evaluation Material or Discussion Information (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to applyacquisition was not directed by a party or any of its Representatives that have knowledge of, the limitation on the actions described in clauses (a)(iior access to, any Evaluation Material or Discussion Information), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders . You also agree that during the Standstill Period they will not to request (in any manner that would reasonably be likely to cause the Company to disclose publicly) that the Company or any of its Representatives, directly or indirectly proposeindirectly, effect amend or agree 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 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 transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a memberpotential transaction, in each case unless case, in such transaction is approved by (or in a manner as would not reasonably be expected to require the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned public disclosure thereof by the Investor Stockholders Company or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)its Representatives.
Appears in 1 contract
Standstill. The Company and the Seller agree that, until the earlier of (a) During the Standstill PeriodClosing Date (subject to the prior effectiveness of the Shareholders Agreement), (b) the date upon which this Agreement is terminated in accordance with Section 9.01 (except as required in connection with the execution, delivery or performance event of (x) a termination of this Agreement and by the consummation of Purchaser in a circumstance where the transactions Seller is not entitled to terminate this Agreement pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) Section 9.01 as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (Seller’s or the exercise Company’s breach of this Agreement or conversion of any such Capital Stock rights or other securities), including any increase in where the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants Termination Fee is not payable as a result of any anti-dilution the proviso to Section 9.02(a) or other terms thereof or (y) a termination in accordance with Section 9.01(g)), and (c) solely in the exercise event of rights (x) a termination of this Agreement by the Purchaser in a circumstance where the Seller is not entitled to terminate this Agreement pursuant to Section 4.1 hereof and (z9.01 as a result of the Seller’s or the Company’s breach of this Agreement or where the Termination Fee is not payable as a result of the proviso to Section 9.02(a) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (By) authorize a termination in accordance with Section 9.01(g), the date that is twenty-four (24) months after the date of this Agreement, neither the Company nor the Seller nor any of their Affiliates and respective Representatives acting on behalf of the Company, the Seller, or make a tender offertheir respective Affiliates will, exchange directly or indirectly, unless specifically invited in writing by the Purchaser Board or in accordance with Section 7.02(d)): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly (whether beneficially, constructively or synthetically through any derivative, hedging or trading position or otherwise) any shares of Purchaser Common Stock or other offer securities or proposal, whether oral Equity Interests in any way related to the acquisition or written, to acquire Equity Securities, in each case, if price of securities or interests of the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder Purchaser or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates its Subsidiaries or any material assets of the Investor Stockholders that are not also Beneficially Owned by the Investor StockholdersPurchaser or any of its Subsidiaries or division thereof, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit make, or participate in any solicitation way participate in, directly or indirectly, any “solicitation” of proxies with respect “proxies” (as such terms are used in the rules of the SEC promulgated under Section 14 of the Exchange Act) to any Voting Stockvote, or (B) seek to advise or influence any Person person or entity with respect to the voting of of, any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation voting securities of the Board); providedPurchaser or its Subsidiaries, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit make any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person public announcement with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other groupto, or otherwise act in concert submit a proposal for, or offer of (with or without conditions) any third Person for the purpose of acquiringmerger, holdingconsolidation, voting business combination, tender or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger)exchange offer, restructuring, liquidation, dissolution recapitalization or other extraordinary transaction with respect to of or involving the Company Purchaser or any of its Subsidiaries;
Subsidiaries or their securities or assets (viiexcept with respect to a consummated Permitted Transfer), (iv) authorize form, join or take in any action to permit any Affiliate of Elevation to be named way participate in a “group” (as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot defined in Section 13(d)(3) of the Company Exchange Act) in connection with the recommendation any voting securities of the Board;
Purchaser or its Subsidiaries, (viiiv) otherwise act, alone or in concert with others, to effect seek to control, or seekinfluence control of, offer or propose (whether publicly or otherwise) to effect control of the management, Purchaser Board or policies of the Company Purchaser, except as contemplated by this Agreement, (vi) make a request for any stockholder list or other books and records of the Purchaser, whether pursuant to seek a waiver Section 220 of the Delaware General Corporation Law or otherwise, (vii) make or cause to be made any provision public statement that disparages, defames or slanders the Purchaser or any of its current or former directors, officers or employees (excluding any such statements made in connection with any bona fide commercial dispute (i.e., unrelated to this Agreement, the Confidentiality Agreement or any other agreements related to the voting transactions contemplated hereby and conversion limits thereby or the ownership of the Purchaser Shares) between and among the Purchaser and its Affiliates, on the one hand, and the Seller and its Affiliates, on the other hand, and except as set forth in the Series B Certificate of Designation and Series C Certificate of Designation; providedclause (x) below), however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ixviii) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel cause or require the Company Purchaser to make a public announcement regarding any of the matters set forth actions prohibited by this paragraph (except in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into connection with a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(iiPermitted Transfer), (a)(iiiix) contest the validity or enforceability of this Section 6.10, (x) institute, solicit, assist or join any litigation, arbitration or other proceedings against or involving the Purchaser or any of its current or former directors or officers (including derivative actions), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable other than an action to enforce the Investor Stockholders (but all other provisions of this Agreement, the Confidentiality Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 or any other agreements related to the contrary notwithstandingtransactions contemplated hereby and thereby instituted in accordance with this Agreement, the Confidentiality Agreement or any other agreements related to the transactions contemplated hereby or thereby, or an action in connection with any commercial dispute (i.e., unrelated to this Section 4.2 shall not prohibit Agreement, the Confidentiality Agreement or restrict any actions taken other agreements related to the transactions contemplated hereby and thereby or the ownership of the Purchaser Shares) unrelated to the matters covered by this Agreement between and among the Investor Stockholders’ designee or designees Purchaser and its Affiliates, on the Board one hand, and the Seller and its Affiliates, on the other hand or (xi) have any discussions or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise or knowingly assist or encourage, any other persons in their capacities as a member connection with any of the Board and in compliance with and subject to his foregoing. Neither the Company or her fiduciary duties as a member the Seller nor any of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not their Affiliates or respective Representatives, shall directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a membermake, in each case unless such transaction is approved by (to the Purchaser or in a third party, any proposal, statement or inquiry, or disclose any intention, plan or arrangement, whether written or oral, inconsistent with the case of a tender foregoing, or exchange offer, is conditioned on request the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders Purchaser or any of their affiliates (its Representatives, directly or indirectly, to amend, waive or terminate any provision of this Section 6.10, in each case, in a manner that would require public disclosure by the Company or the Seller. The Seller represents and warrants to the Purchaser that, as defined in Section 12b-2 of the Exchange Act)date hereof, neither it nor its Affiliates owns (whether beneficially, constructively or synthetically through any derivative, hedging or trading position or otherwise) any shares of Purchaser Common Stock or other securities or Equity Interests in any way related to the acquisition or price of securities or interests of the Purchaser.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Tenneco Inc)
Standstill. (a) During Except as provided in Section 4.1(b), from the Closing until three months after no DSM Nominee serves on the Board (the “Standstill Period”), except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders DSM shall not, and nor shall it permit DSM Parent or any of its other Subsidiaries or controlled Affiliates to, directly or indirectly, without the Investor Stockholders shall ensure that none prior consent of the Elevation Entities or their respective Affiliates shall, nor shall any Company (acting through a resolution of the foregoing Persons act in concert with any other Person to:Company’s Non-DSM Directors):
(i) except acquire or agree to acquire, whether by purchase, tender or exchange offer, by forming, joining or otherwise participating in a partnership, syndicate or other Group, through the use of a derivative instrument or voting agreement, or otherwise, (xA) as a result of the Beneficial Ownership of additional Voting Securities or Convertible Securities after the Closing that would result in DSM Parent (together with its Subsidiaries or controlled Affiliates and any parties acting as members of a Group with DSM), having Beneficial Ownership of more than 33.0% in the aggregate of the shares of Voting Securities outstanding at such time (assuming (1) the exercise of any Rights, (y) all of then-outstanding Warrants for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the maximum number of shares of Common Stock issuable upon thereunder, regardless of whether such Warrants are then exercisable, and (2) the conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or Shares for the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will issuable thereunder, regardless of whether such Shares are then convertible, which number of shares shall be excluded included in the numerator and denominator for purposes of determining the percentage of Voting Securities Beneficially Owned by DSM Parent (together with its Subsidiaries and controlled Affiliates and any parties acting as members of a Group with DSM) for purposes of this clause (A)), except pursuant to Section 4.2 of this clause equal Agreement, pursuant to one percent (1%) the exercise of the Diluted Common Shares OutstandingWarrants, pursuant to the Prior Securities Purchase Agreement or the Securities Purchase Agreement or pursuant to the Company’s Certificate of Designation of Preferences, Rights and Limitations of Series B 17.38% Convertible Preferred Stock, or (B) any direct or indirect ownership interest in any indebtedness or debt securities of the Company or any of its Subsidiaries, except pursuant to Section 4.2 of this Agreement;
(ii) (A) solicit make, or participate in any solicitation way participate, directly or indirectly, in any “solicitation” of proxies with respect “proxies” (as such terms are used in the rules of the SEC) to any vote Voting StockSecurities, or (B) seek to advise or knowingly influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate Securities or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iiiC) deposit any Voting Stock Securities in a any voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock Securities to any arrangement or agreement with any Person with respect to the voting of such any Voting StockSecurities, except for this Agreement;
(iii) make any public announcement of a proposal or offer (with or without conditions) with respect to any extraordinary transaction involving DSM Parent or its Subsidiaries or controlled Affiliates and the Company including, without limitation, any tender offer, merger, consolidation or business combination;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) seek to effect any Change in Control recapitalization, reclassification, liquidation or dissolution of the Company;
(viv) effect or seek, offer or propose (whether publicly or otherwise) to effect disclose any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do arrangement by DSM regarding the possibility of any of the foregoing; orevents described in clauses (i) through (iv) above;
(xvi) otherwise knowingly take any action that would or could reasonably be expected to compel require either the Company or DSM under applicable law or the rules of the principal exchange on which the Company’s Common Stock is then listed or traded to make a public announcement regarding the possibility of any of the matters set forth events described in this Section 4.2clauses (i) through (iv) above; or
(vii) enter into any discussions, negotiations, agreements or understandings with any other third Person (excluding DSM’s advisors) with respect to any of the foregoing.
(b) IfNotwithstanding the foregoing, at any time during the Standstill Periodrestrictions contained in Section 4.1(a) shall not (1) apply with respect to the designations of the DSM Nominees in accordance with this Agreement, (i2) the Company has entered into prevent a definitive agreement, the consummation of which would result DSM Director from taking any action in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties capacity as a member director of the Board.
Company, (d3) The Investor Stockholders agree that during prohibit DSM Parent or any of its Subsidiaries or controlled Affiliates from voting its Voting Securities in its discretion, (4) apply to the Standstill Period they will not directly acquisition of securities in or indirectly propose, effect control of another Person (including by way of merger or agree consolidation) or (5) apply to any transaction which if consummated acquisitions or investments by any bona fide employee benefit plan of DSM Parent or its Subsidiaries or controlled Affiliates. In addition, the restrictions contained in Section 4.1(a) shall not prevent a private communication to the Board to the extent that such private communication would result in not reasonably be expected to require a public disclosure prior to any public announcement by the Company that it (or its Board) has approved or entered into an agreement with respect to a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder Transaction or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)Fundamental Transaction.
Appears in 1 contract
Sources: Stockholder Agreement (Amyris, 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) During the Standstill Periodacquire, except as required in connection with the executionoffer or agree to acquire any shares of Common Stock (or options or warrants to acquire, delivery or performance securities convertible into or exchangeable for, shares of this Agreement and the consummation of the transactions pursuant to the Series C Purchase AgreementCommon Stock) if, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership such acquisition, Mutual (together with any Mutual Affiliates) would Beneficially Own more than a number of or exercise shares of any Rights, Common Stock in excess of a number equal to forty percent (y40%) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred outstanding shares of Common Stock or Warrants plus forty percent (or 40%) of the exercise or shares of Common Stock issuable upon conversion of any such Capital Stock rights or other securities), including any increase in the Convertible Notes plus forty percent (40%) of the number of shares of Common Stock issuable upon conversion or exercise conversation of the Series B Preferred Stock; provided, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as suchhowever, if anythat, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating computing such amount, the number of 37,900 shares of Common Stock Beneficially Owned by the Investor Stockholders and their AffiliatesInvista Capital Management, there Inc. ("Invista") on December , 1997 shall be excluded from such calculation for as long as such shares of Common Stock are regarded as Beneficially Owned by Affiliates Invista (and no longer) and provided that no executive officer or director of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit Mutual or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders Principal or any Affiliate or (y) other than in accordance with and consistent with the recommendation employee of the Board); providedMutual, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust orPrincipal, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates other than officers, directors or employees of Invista charged with the 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 (as defined in Section 12b-2 40%) of the Exchange Act)shares of Common Stock outstanding plus forty percent (40%) of the shares of Preferred Stock outstanding; (b) directly or indirectly 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, which Person has been nominated by the Nominating Committee of the Board of Directors; (c) vote its shares of Common Stock for the election of any Person to the Board of Directors other than the Persons nominated by the Nominating Committee of the Board of Directors; or (d) directly or indirectly make or solicit or assist any third party to make a tender or exchange offer to purchase any shares of Common Stock or make any public announcement concerning, or submit any written proposal to the Board of Directors of the Company for a merger, share exchange, acquisition of substantially all of the assets or similar transaction involving the Company.
Appears in 1 contract
Standstill. (a) During Without the Standstill Period, except as required in connection with the execution, delivery approval or performance of this Agreement and the consummation written consent of the transactions pursuant to the Series C Purchase AgreementBoard of Directors, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities General Atlantic Stockholders or any of their Affiliates, and none of the Coinvestor Stockholders or any of their respective Affiliates shall, nor shall severally and not jointly, at any of time prior to the foregoing Persons act in concert with any other Person toStandstill Expiration Date:
(ia) except (x) as a result purchase or otherwise acquire, or propose or offer to purchase or acquire, any shares of the Beneficial Ownership of Company's capital stock, whether by tender offer, market purchase, privately negotiated purchase, merger or exercise of otherwise, any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms shares of the Series B Preferred Stock, Series C Preferred Company's capital stock or any Common Stock or Warrants (or the exercise or conversion Equivalents in excess of any such Capital Stock rights or other securities), including any increase in the number of shares of the Company's capital stock and Common Stock issuable upon conversion or exercise Equivalents purchased pursuant to the Stock Purchase Agreement (subject to adjustments and issuances of additional Common Stock Equivalents pursuant to the Series D Preferred Stock Certificate of Designation) with respect to each such Stockholder and its Affiliates considered severally and not jointly with any other Stockholder and its Affiliates (the "STANDSTILL CEILING"); PROVIDED, HOWEVER, that in no event shall any such Stockholder acquire any Shares in a transaction in such an amount that when aggregated with the shares of the Company's capital stock already owned by such Stockholder, the acquisition of such shares of the Company's capital stock would require stockholder approval under applicable Nasdaq rules and policies; and PROVIDED, FURTHER, that the dividends that accrue on the shares of Series B Preferred Stock, Series C D Preferred Stock or Warrants as a result of any anti-dilution or other pursuant to the terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would shall be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that excluded for purposes of calculating whether or not a Stockholder and its Affiliates have exceeded the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares OutstandingStandstill Ceiling;
(iib) (A) solicit except as specified in this Agreement, make, or participate in any solicitation way participate, directly or indirectly, in any "solicitation" of proxies with respect "proxy" (as such terms are defined or used in Regulation 14A of the Exchange Act) to any Voting Stockvote, or (B) seek to advise or influence any Person with respect to the voting of, any shares of the Company's capital stock, or become a "participant" in any Voting Stock "election contest" (other than (xas such terms are used or defined in Regulation 14A of the Exchange Act) relating to the Investor election of directors of the Company; PROVIDED, HOWEVER, that none of the General Atlantic Stockholders, the Coinvestor Stockholders or any Affiliate of their respective Affiliates shall be deemed to have engaged in a "solicitation" or (y) other than in accordance with and consistent with the recommendation to have become a "participant" by reason of the Board); providedmembership of designees of the General Atlantic Stockholders, that the limitation contained in this clause (ii) shall not apply to Coinvestor Stockholders or any proposal recommended by of their respective Affiliates on the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a memberDirectors;
(iiic) deposit form, join or in any Voting Stock way participate in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to "group" (within the voting meaning of such Voting Stock;
(ivSection 13(d)(3) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted TransfereesExchange Act) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control shares of the Company;
's capital stock; PROVIDED, HOWEVER, that (vii) effect the General Atlantic Stockholders may act as a group for the purpose of acquiring, holding, voting or seekdisposing of any shares of the Company's capital stock, offer or propose (whether publicly or otherwiseii) to effect any recapitalization (other than the Merger)Vectis CP Holdings, restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit LLC and any Affiliate thereof that acquires shares of Elevation to be named the Company's capital stock (the "Vectis Stockholders") may act as a director candidate on a proxy group for the purpose of acquiring, holding, voting or ballot disposing of any other Person other than the proxy or ballot shares of the Company with the recommendation Company's capital stock and (iii) Cenwell Limited, Campina Enterprises Limited and any Affiliate thereof that acquires shares of the Board;
Company's capital stock (viiithe "Cenwell Stockholders") otherwise actmay act as a group for the purpose of acquiring, alone holding, voting or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control disposing of any shares of the managementCompany's capital stock; and PROVIDED FURTHER, Board that, for the avoidance of doubt, the General Atlantic Stockholders, the Vectis Stockholders and the Cenwell Stockholders may not together act as a group for all purpose of acquiring, holding, voting or policies disposing of any shares of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoingCompany's capital stock; or
(xd) otherwise request the Company (or its directors, officers, employees or agents), to take any action that which would or could reasonably be expected to compel require pursuant to law the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, or proposal or offer with respect to (i) any form of business combination or transaction involving the Company has entered into including, without limitation, a definitive agreementmerger, the consummation of which would result in a Fundamental Changeconsolidation, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt sale or purchase of tenders from)assets, the holders of a majority or dissolution or liquidation of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders Company or (ii) instigate, encourage or assist any Person to do any of their affiliates (as defined in Section 12b-2 of the Exchange Act)foregoing.
Appears in 1 contract
Sources: Stockholders Agreement (General Atlantic Partners LLC)
Standstill. (a) During From the Standstill Period, except as required in connection Closing until Company Parent (together with the execution, delivery or performance of this Agreement and the consummation its Affiliates) Beneficially Owns Acquiror Securities representing less than 5% of the transactions pursuant to Acquiror Voting Power, Company Parent covenants and agrees that, without the Series C Purchase Agreementprior written consent of Acquiror or its Board of Directors, the Investor Stockholders shall Company Parent will not, and the Investor Stockholders shall ensure that none of the Elevation Entities will not cause or their respective Affiliates shall, nor shall permit any of the foregoing Persons act in concert with any other Person its controlled Affiliates, directly or indirectly, to:
(i) except acquire, offer to acquire, or agree to acquire, by purchase or otherwise, Beneficial Ownership of Acquiror Securities representing more than 40% of the Acquiror Voting Power;
(xii) make or join or become a participant in any “solicitation” of “proxies” (as such terms are defined in Regulation 14A as promulgated by the SEC) from holders of Acquiror Securities; provided, that Company Parent’s mere factual disclosure, in response to a bona fide third party request for such information, of the manner in which it has voted or intends to vote any Acquiror Securities shall not be deemed to be in violation of this Section 5.20(a)(ii);
(iii) form, join, or knowingly participate in a Group (other than with Company Parent’s Affiliates) in connection with the voting of Acquiror Securities; or
(iv) nominate or cause to be nominated any persons for election to ▇▇▇▇▇▇▇▇’s Board of Directors other than pursuant to Company Parent’s rights set forth in the A&R Stockholders Agreement.
(b) Notwithstanding the foregoing, Section 5.20(a) shall not prohibit, restrict, hinder, limit or impede any of the following:
(i) the submission of one or more confidential proposals for a potential negotiated transaction to the Chief Executive Officer of Acquiror (or other individual(s) specifically designated in writing by the Chief Executive Officer of Acquiror) or the Acquiror’s Board of Directors so long as such confidential proposals are made in a manner that would not reasonably be expected to require Company Parent or Acquiror to make any public announcement regarding any such proposal(s), unless and until such proposal is approved by the Acquiror’s Board of Directors;
(ii) the exercise of Company Parent’s rights or performance of any obligations under this Agreement, the A&R Charter, the A&R Bylaws, the A&R Stockholders Agreement, or the A&R Registration Rights Agreement, including bringing any claim to enforce its rights thereunder or defending itself from any claim thereunder;
(iii) any action, omission or statement or other communication by a ▇▇▇▇▇-▇▇▇▇▇▇ Designee (as defined the A&R Stockholders Agreement) in a meeting of the Acquiror’s Board of Directors or in discussions or deliberations among members of the Acquiror’s Board of Directors, solely in his or her capacity as a member of the Acquiror’s Board of Directors;
(iv) acquisitions made on a pro rata basis (based on economic ownership) as a result of the Beneficial Ownership a stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights shares or other securities from like change approved by the Company pursuant to the terms Acquiror’s Board of the Series B Preferred Stock, Series C Preferred Stock or Warrants Directors;
(or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants v) acquisitions as a result of any anti-dilution or other terms thereof or the exercise of Company Parent’s preemptive rights pursuant to Section 4.1 hereof 5.22;
(vi) acquisitions (other than acquisitions consummated with the intent to circumvent the restrictions in Section 5.20(a)) as a result of Company Parent or any of its controlled Affiliates acquiring equity interests in a previously unaffiliated Person that Beneficially Owns Acquiror Securities at the time of the consummation of such acquisition, so long as such transaction is consummated for a bona fide business purpose (and not for the purpose of utilizing the exception set forth in this Section 5.20(b)(vi));
(zvii) Equity acquisitions (other than acquisitions consummated with the intent to circumvent the restrictions in Section 5.20(a)) by any mutual fund, pension trust, hedge fund, private equity fund or other investment vehicle in which Company Parent or any of its controlled Affiliates holds an interest, but which is not controlled or advised by Company Parent or its controlled Affiliates;
(viii) any statement or other communication to the extent necessary to comply with applicable Law or any subpoena or other legal process or to respond to a request for information from any Governmental Authority, self-regulatory body or securities exchange with jurisdiction over such Person from whom information is sought;
(ix) any statement or other communication regarding Acquiror by Company Parent to its or its controlled Affiliates’ investors, potential investors or Representatives; provided that any such communications are subject to reasonable confidentiality obligations of such investors or Representatives;
(x) 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 agreements or depositing (or withdrawing from deposit) any Acquiror Securities issued with a fiduciary or depositary pursuant to Appointed Directors a deposit agreement or Investor Directors arrangements (including any prime broker account);
(xi) soliciting quotes or bids from brokers, market makers or similar Persons in their capacities connection with pricing any Acquiror Securities or other valuation confirmations;
(xii) subject to compliance with applicable securities laws, negotiating, evaluating or trading, directly or indirectly, in any index, exchange traded fund, benchmark or other basket of securities which may include, or otherwise reflect the performance of, any Acquiror Securities;
(xiii) participation on the same basis as suchother stockholders of Acquiror in any tender or exchange offer, if anyconsolidation, business combination, acquisition, merger, Change of Control or similar extraordinary transaction involving Acquiror or any sale of all or a substantial portion of the assets of Acquiror initiated by a third party (provided that any “solicitation” of “proxies” or any public announcement with respect to such transaction shall be governed by Section 5.20(a));
(xiv) the receipt, in and of itself, by Company Parent or any of its controlled Affiliates of any unsolicited inquiries or indications of interest (provided any response thereto shall be governed by Section 5.20(a)); or
(xv) Company Parent or any of its controlled Affiliates taking action specifically invited in writing by the Acquiror’s Board of Directors.
(c) The prohibitions in Section 5.20(a) shall immediately terminate, and Company Parent may engage in any of the activities specified in Section 5.20(a), in the event that:
(i) Acquiror enters into a definitive written agreement providing for a Change of Control;
(ii) (A) acquire any Economic Right Person or Beneficial Ownership Group (other than Company Parent or any of Equity Securities or (Bits Affiliates) authorize or make commences a tender offer, exchange offer or other similar offer or proposal, whether oral or written, to acquire Equity Securities, in each casethat, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (includingconsummated, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of Acquiror and (B) the Company in which the acquiring counterparty is Board of Directors of Acquiror either (ix) an Investor Stockholder or an Affiliate of an Investor Stockholder publicly recommends that Acquiror consummate such transaction or (iiy) does not publicly recommend against such transaction within 10 Business Days of the public commencement of such tender offer, exchange offer or other similar offer;
(iii) a member Change of Control otherwise occurs; or
(iv) Acquiror files for, or becomes subject to a 13D Group of which an Investor Stockholder proceeding for, bankruptcy, reorganization, liquidation, dissolution or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)similar process.
Appears in 1 contract
Standstill. (a) During Investor agrees that until the Standstill Periodearlier of March 29, except as required in connection with the execution, delivery or performance of this Agreement 2005 and the consummation date that Investor (together with its Affiliates) no longer beneficially owns Common Shares and/or Preferred Shares (including shares underlying the Warrants) representing on an as converted basis, in the aggregate, at least equal to 10.0% of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Company's outstanding Common Shares Outstanding;
(ii) (A) solicit or participate in making equitable adjustments for any solicitation of proxies with respect to any Voting Stockconversions, or (B) seek to advise or influence any Person reclassifications, reorganizations, stock dividends, stock splits, reverse splits and similar events which occur with respect to the voting Common Stock), neither Investor nor its Affiliates will, directly or indirectly, without the prior written consent of any Voting Stock a majority of the Board of Directors of the Company (other than the nominees or designees of the Investor) acquire, agree to acquire, make any proposal to acquire or in any way participate in a "group" (xwithin the meaning of Section 13(d)(3) of the Investor Stockholders Exchange Act) to do any of the foregoing, equity securities (including convertible debt instruments and preferred stock but excluding the shares of Series A Preferred Stock and the Warrants or any Affiliate shares of capital stock issuable upon the conversion or (yexercise thereof) other than in accordance with and consistent with the recommendation of the Board)Company representing more than 30% of the voting power of all voting securities of the Company on a fully diluted basis; provided, however, that the limitation contained agreements of Investor set forth in this clause (ii) Section 5.6 shall not apply to any proposal recommended (A) following the breach by the Board relating to a Change in Control Company of any of the Company to be voted on by the Company’s stockholders that is not instituted covenants set forth in Sections 4.4(b) or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
4.4(c) (iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated hereinin the introductory clauses to Sections 4.4(b) and 4.4(d) and in Section 4.4(g), subject the failure of the Designees of Investor to be elected as directors during the period Investor has the right to designate any Voting Stock to any arrangement or agreement with any Person with respect individual for nomination to the voting Board of Directors pursuant to Section 4.4) in which event such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely agreements of the Investor Stockholders shall be of no further force and their Permitted Transfereeseffect; (B) or other group, or otherwise act in concert with the event that any third Person for of the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
following events occurs (vx) effect or seek, offer or propose the acquisition (whether publicly by business combination, merger, tender or exchange offer, or otherwise) by any "group" (within the meaning of Section 13(d)(3) of the Exchange Act, and specifically excluding ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (unless either ▇▇. ▇▇▇▇ or ▇▇. ▇▇▇▇▇▇ or any of their Affiliates acquire additional Common Shares (or securities convertible into Common Shares), other than through the grant or exercise of options approved by the Board of Directors (or a committee thereof) and issued pursuant to effect any Change in Control an option plan of the Company;
(vi, representing 10% or more of the Common Shares held by ▇▇. ▇▇▇▇ or ▇▇. ▇▇▇▇▇▇, as applicable, as of the date hereof) effect or seek, offer or propose (whether publicly or otherwiseand the Investor and its Affiliates) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot 20% of any other Person other than the proxy or ballot class of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies equity securities of the Company or of substantially all of the assets of the Company, (y) the solicitation of proxies by any Person or group (other than Investor and its Affiliates) to seek a waiver engage in any of any provision the transactions described in (x), or (z) the public announcement of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take , or of any action that would or could reasonably be expected intent to compel engage in the Company to make a public announcement regarding any foregoing, in which event such agreements of the matters set forth Investor shall be of no further force or effect; provided that if any transaction described in this Section 4.2.
clause (by) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(xz) above shall not be applicable is definitively abandoned prior to the Investor Stockholders its consummation (but all other provisions of this Agreement willor, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt Person making such tender or exchange offer does not acquire more than 20% of tenders fromany class of equity securities of the Company), then such agreements shall thereupon be reinstated, subject to further suspension or reinstatement in the holders of a majority event of the outstanding shares occurrence of further events described in clauses (x), (y) or (z) of this proviso, respectively; and (C) (x) to the extent of any sales or transfers of Common Stock not Beneficially Owned Shares prior to the earlier of the Second Closing or the termination date of the applicable Voting Agreement, by any of the Investor Stockholders parties to the Voting Agreements (other than the Investor), or any of their affiliates transferees, to any Person not subject to the Voting Agreements, in which case the Investor shall be permitted to acquire and/or solicit for the acquisition of Common Shares up to the aggregate amount of any such sales or transfers, or (as defined in Section 12b-2 y) upon the material breach of the Exchange ActVoting Agreements by any of the parties thereto (other than the Investor) prior to the Second Closing or the termination date of the applicable Voting Agreement, (1) upon which material breach, if arising from the failure of the breaching party to vote such party's shares in accordance with the provisions of the Voting Agreements and the Investor is unable to exercise its proxy with respect to such shares, the Investor shall be entitled to purchase the number of Common Shares equal to the percentage of ownership of the outstanding capital stock of the Company owned by such breaching party or parties immediately following the date of this Agreement (or as of the date any such breaching party acquired its Common Shares if the breaching party is a transferee of a party to the Voting Agreements which transferee agreed to bound by the Voting Agreements), or (2) upon which material breach, if arising from the sale or other transfer of Common Shares by the breaching party in violation of the provisions of the Voting Agreements, the Investor shall be entitled to purchase the number of Common Shares equal to the aggregate amount of any such sales or transfers.
Appears in 1 contract
Sources: Securities Purchase Agreement (Crown Acquisition Partners LLC)
Standstill. (a) During The Purchasers, together with any 13d Group of which it is a part, but excluding any investment company or affiliated money management advisor registered under the Standstill PeriodInvestment Company Act of 1940, as amended, or the Investment Advisers Act of 1940, as amended, agree that they shall not Beneficially Own any Voting Stock or Common Stock of the Company other than (i) the Shares, (ii) the Underlying Shares, (iii) all Common Stock and PS issued as a dividend on PS (the "Dividend Shares"), (iv) Capital Stock of the Company acquired pursuant to Section 5.14 or Section 5.15 and (v) shares of Common Stock, in addition to those described in clauses (i), (ii), (iii) or (iv) above, not exceeding five percent (5%) of the issued and outstanding Common Stock (calculated at the date of determination), provided that in no event shall the Purchasers Beneficially Own shares of Capital Stock of the Company that would be entitled to cast thirty five percent (35%) or more of the aggregate votes entitled to be cast under ordinary circumstances with respect to the election of directors of the Company, except as required such ownership is a result of (v) any repurchase of Capital Stock by the Company, (w) the receipt, exercise or conversion of rights or other securities, including the Dividend Shares, issued in connection with the execution, delivery or performance of this Agreement and the consummation respect of the transactions pursuant to the Series C Purchase AgreementPS, the Investor Stockholders shall notWarrants or the Underlying Shares, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) a Business Combination between the Company and another Person approved by the Board and in which any Purchaser owns, directly or indirectly, any Capital Stock of such other Person prior to the approval by the Board of such Business Combination, (y) Capital Stock of the Company acquired pursuant to Section 5.14 or (z) Capital Stock of the Company acquired as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from election by the Company pursuant to the terms of under the Series B Preferred C Warrants to have such Warrants exercisable for shares of Common Stock.
(b) The Purchasers shall not knowingly, Series C Preferred Stock or Warrants (or the exercise or conversion of after due inquiry, sell any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise Warrants to any Person or 13d Group which would, immediately following such sale, Beneficially Own in excess of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one ten percent (110%) of the Diluted issued and outstanding Voting Stock or Common Shares Outstanding;Stock of the Company; provided that, if such Person or 13d Group is known to the Purchasers to be a competitor of the Company in the oil and gas exploration and production industry, the foregoing restriction shall apply if such Person or 13d Group would, immediately following such sale, Beneficially Own in excess of five percent (5%) of the issued and outstanding Voting Stock or Common Stock of the Company.
(iic) (A) solicit or participate If the Purchasers are not in any solicitation violation of proxies with respect to any Voting Stockthis Section 5.10, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than restrictions set forth in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (iiSection 5.10(b) shall not apply to any proposal recommended transfer of Warrants or Common Stock (i) to any partner or wholly-owned subsidiary of any Purchaser that agrees to be bound by the Board provisions this Section 5.10 as if it were a Purchaser for purposes of this Section, (ii) upon consummation of a business combination or similar transaction involving the Company, or an agreement relating to a Change in Control of the Company to be voted on thereto being approved by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
Board, (iii) deposit any Voting Stock in pursuant to a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer approved by, or recommended by, the Board or pursuant to which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject formally expressed no opinion and remains neutral toward such tender or exchange offer within subject to the time period contemplated by provisions of Rule 14d-9, for so long as such condition continues to apply, 14d-9 promulgated under the limitation on the actions described in clauses (a)(ii)Exchange Act, (a)(iii)iv) pursuant to a distribution by a Purchaser, substantially pro-rata, to equity owners of such Purchaser, or (a)(ivv) (and any related acquisition of Beneficial Ownership solely by being part of pursuant to a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable bona fide underwritten public offering in which the Purchasers use reasonable efforts to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken obtain an agreement by the Investor Stockholders’ designee or designees on underwriters to make a good faith effort to prevent the Board in their capacities as a member sale to any one Person of more than five percent (5%) of the Board issued and in compliance with and subject to his outstanding Voting Stock or her fiduciary duties as a member Common Stock of the BoardCompany.
(d) The Investor Stockholders agree restrictions set forth in Section 5.10(b) shall terminate upon the first to occur of (i) a Change of Control, (ii) the redemption by the Board of rights granted under the EEX Rights Agreement or any similar agreement subsequent entered into or adopted by the Company (each, a "Rights Agreement"), and (iii) the Board's permitting, by amendment or waiver of any Rights Agreement or otherwise, of any Non-financial Person to Beneficially Own twenty percent (20%) or more, or any Financial Person to Beneficially Own more than thirty-five percent (35%), of the Voting Stock of the Company.
(e) In connection with any matter in which the Purchasers both (i) have voting rights which are counted together with the voting rights of the Voting Stock or Common Stock of the Company and (ii) do not have voting rights as a holder of the Shares counted separately as a class, the number of votes which the Purchasers shall be entitled to cast at their sole discretion shall not exceed one vote fewer than twenty percent (20%) of the aggregate number of votes entitled to be cast thereon by the Common Stock and all other classes of Capital Stock of the Company entitled to vote on such matter, less the votes entitled to be cast by any non-Purchaser constituting a member of any 13d Group of which Purchaser is a member. If Purchaser would otherwise be entitled to cast votes in excess of the number calculated pursuant to the previous sentence, then the balance of such votes shall be cast for, against or abstain in respect of such matter in the same proportion as the votes cast for, against or abstain by all other shareholders of the Company.
(f) The Purchasers shall not participate in or be a member of any 13d Group (other than a 13d Group composed solely of themselves and their affiliates) with respect to the Voting Stock or Common Stock of the Company.
(g) The Purchasers shall be prohibited from seeking, proposing or making any public statement regarding a tender offer or Business Combination involving the Company. The Purchasers shall use all reasonable efforts to promptly notify the Company if any of the Purchasers' Board representative, observer or alternate is approached with respect to or made aware of a proposal regarding any of the foregoing.
(h) The Purchasers shall not be a participant in a proxy solicitation with respect to the Capital Stock of the Company or subject its shares of Capital Stock of the Company to voting trusts or similar voting agreements.
(i) All of the provisions of this Section 5.10 shall terminate and be of no further force or effect upon the earliest to occur of (i) any date on or after the tenth anniversary of the Closing on which the Market Price per share of the Common Stock is at or below twelve dollars ($12.00) (provided that during such price shall be adjusted in same manner as the Standstill Period Exercise Price as defined in the Warrants), (ii) any date on which the Purchasers and any 13d Group of which they will not directly or indirectly proposeare a member shall Beneficially Own less than ten percent (10%) of the issued and outstanding Common Stock of the Company, effect or agree to any transaction which if consummated would result in (iii) a Change of Control of the Company type described in which clause (a) of the acquiring counterparty is definition thereof, (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (iiiv) a member redemption by the Board of a 13D Group any rights granted under any Rights Agreement, and (v) the Board permitting by amendment or waiver of which an Investor Stockholder any Rights Agreement or an Affiliate of an Investor Stockholder is also a memberotherwise, in each case unless such transaction is approved by any Non-financial Person to Beneficially Own twenty percent (20%) or in the case of a tender more, or exchange offer, is conditioned on the receipt of tenders fromany Financial Person to Beneficially Own more than thirty-five percent (35%), the holders of a majority of the outstanding shares of Common Voting Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)Company.
(j) The Board shall be entitled to waive in writing the Purchasers' compliance with any or all of the provisions of this Section 5.10.
Appears in 1 contract
Sources: Purchase Agreement (Eex Corp)
Standstill.
8.1 Except as otherwise set out in this Agreement, until either (i) the Joint Bid has become unconditional in all respects (and where the entire issued share capital of the Target has been acquired by Bidco and the Joint Bid consideration has been settled in full); or (ii) this Agreement has been terminated, whichever is earlier and except to implement the Joint Bid as agreed by the Steering Committee:
(a) During no Party shall (and each Party shall procure that no person "acting in concert" with it (as such term is defined in the Standstill PeriodCode) (including Bidco) shall), except as required in connection with the execution, delivery either alone or performance of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act acting in concert with others acquire or offer to acquire, or cause another person to acquire or to offer to acquire, an interest in any shares or other Person to:
securities in the Target (iincluding for these purposes, securities carrying subscription or conversion rights relating to the Target's shares or securities, or derivatives or contracts for differences referenced to the Target's shares) except (x) "Target Securities"), or enter into an agreement or arrangement as a result of the Beneficial Ownership of which it or exercise of any Rightsperson may acquire any interest in Target Securities, (y) for the receipt of any Capital Stock, rights other than acquiring or other securities offering to acquire Target Securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock Target or Warrants (entering into any agreement or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants arrangement as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity which Target Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would may be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of acquired which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting preventing or disposing remedying a Default or potential Default and which does not involve acceptance of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, agreement to accept another takeover offer or propose (whether publicly or otherwise) to effect any Change in Control of for the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of DesignationTarget; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.and
(b) Ifno Party shall (and each Party shall procure that its Affiliates shall not) sell, at transfer or otherwise dispose of or cause another person to sell, transfer or otherwise dispose of any time during the Standstill Period, (i) the Company has entered interest in Target Securities or enter into an agreement or arrangement or accept any offer from any third party as a definitive agreement, the consummation result of which would result it or any person may sell, transfer or otherwise dispose of any interest in a Fundamental ChangeTarget Securities.
8.2 Each Party accepts, and agrees to advise their Authorised Recipients, that some or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change all of the Confidential Information and the Board has not recommended Joint Bid negotiations may be price sensitive information relating to Target Securities and agrees to comply, and shall procure that its stockholders reject such offer within the time period contemplated by Rule 14d-9their Authorised Recipients comply, for so long as such condition continues with all applicable insider dealing and market abuse legislation in relation to apply, the limitation on the actions described dealings in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply)Target Securities.
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 1 contract
Sources: Joint Bidding Agreement
Standstill. Section 5.1 Standstill
(a) During Without the prior written consent of the Company or except as provided in this Agreement, from the date hereof until the second anniversary of the date hereof (the "Standstill Period"), except as required in connection with the execution, delivery or performance each of this Agreement Williams and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Other Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their not permit an▇ ▇▇ ▇▇▇ir respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights Permitted Transferees or other securities from the Company pursuant Affiliates to, acquire, publicly announce an intention to the terms of the Series B Preferred Stockacquire, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, agree to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting beneficial ownership of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of resulting in an Investor Stockholder is a member;
(iii) deposit any Voting Stock increase in a voting trust ortheir respective percentage beneficial ownership, except as otherwise provided or contemplated hereinat such time, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate 's Voting Stock on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2fully diluted basis.
(b) IfNotwithstanding anything in this Agreement (including this Section 5.1) to the contrary, at any time during the Standstill Period, (i) the Company has entered into a definitive agreementeach of Williams, the consummation Other Stockholders and their respective Permitted Transf▇▇▇▇▇ ▇▇d other Affiliates may acquire additional Voting Stock upon the conversion or exchange of which would result in a Fundamental Changethe Series A Preferred Stock, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to applyeach of Williams, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (Other Stockholders and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all their respective Permitted Transf▇▇▇▇▇ ▇▇d other provisions of this Agreement willAffiliates may, subject to Section 4.2(c)compliance with applicable law, continue propose, announce and otherwise make an offer to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member purchase all of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control outstanding capital stock of the Company in which and pursuant to such offer acquire such shares of capital stock, and (iii) each of Williams, the acquiring counterparty is Other Stockholders and their respective Permitted Transf▇▇▇▇▇ ▇▇d other Affiliates may make open market purchases of the Company's Voting Stock as may be necessary for such Persons (ieither directly or through its Permitted Transferees) an Investor Stockholder or an Affiliate to maintain their respective fully-diluted ownership percentage of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned Company's Voting Stock existing on the receipt date hereof. The Company agrees that it will not unreasonably deny any request for a waiver of tenders from)the restrictions set forth in this Article V made by Williams, the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Other Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)respective Permitted Transfe▇▇▇▇.
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Standstill. Without the prior written consent of Placement Agent, from the date hereof until thirty (30) days after the Closing Date, the Company shall not (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any Common Stock or common stock equivalents, other than an Exempt Issuance or (ii) file any registration statement or any amendment or supplement thereto, other than (A) the Prospectus Supplement, (B) filing a registration statement on Form S-8 in connection with any employee benefit plan, or (C) filing a registration statement on Form S-3 or a post-effective amendment to Form S-1 on Form S-3 solely for the purpose of registering shares of Common Stock or Common Stock Equivalents currently registered by the Company on Form S-1. For purposes of this Agreement, “Exempt Issuance” means the issuance of (a) During the Standstill Periodshares of Common Stock or options to employees, except as required in connection with the execution, delivery officers or performance directors of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms any share or option plan duly adopted for such purpose, by a majority of the Series B Preferred Stocknon-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, Series C Preferred Stock or Warrants (or b) securities upon the exercise or exchange of or conversion of any securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such Capital Stock rights or other securities), including any securities have not been amended since the date of this Agreement to increase in the number of shares such securities or to decrease the exercise price, exchange price or conversion price of Common Stock issuable upon conversion such securities (other than in connection with stock splits or exercise combinations) or to extend the term of such securities, (c) the securities of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights Company issued pursuant to Section 4.1 hereof the Purchase Agreement, and (zd) Equity Securities securities issued pursuant to Appointed Directors acquisitions or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership strategic transactions approved by a majority of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect disinterested directors of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill LimitCompany, provided that for purposes such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of calculating any registration statement in connection therewith during the number of shares of Common Stock Beneficially Owned by the Investor Stockholders prohibition period in Section 14 herein and their Affiliates, there provided that any such issuance shall only be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent Person (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting equityholders of any Voting Stock (other than (xa Person) the Investor Stockholders which is, itself or any Affiliate through its subsidiaries, an operating company or (y) other than an owner of an asset in accordance with and consistent a business synergistic with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control business of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect and shall provide to the voting Company additional benefits in addition to the investment of such Voting Stock;
(iv) join funds, but shall not include a 13D Group (other than a group comprising solely of transaction in which the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person Company is issuing securities primarily for the purpose of acquiringraising capital or to an entity whose primary business is investing in securities. [Signature page follows] Please confirm that the foregoing correctly sets forth our agreement by signing and returning to the Placement Agents the enclosed copy of this Agreement. Very truly yours, holdingBy: /s/ ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ Title: Authorized Representative Titan Partners Group LLC, voting or disposing a division of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seekAmerican Capital Partners, offer or propose (whether publicly or otherwise) LLC ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇ Email: *** Accepted and Agreed to effect any Change in Control as of the date first written above: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Chief Financial Officer Address for notice: Innventure, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Orlando, FL 32827 Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Email: *** This Securities Purchase Agreement (this “Agreement”) is dated as of January 12, 2026, between Innventure, Inc., a Delaware corporation (the “Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger”), restructuringand each purchaser identified on the signature pages hereto (each, liquidationincluding its successors and assigns, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting “Purchaser” and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreementcollectively, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply“Purchasers”).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
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Standstill. (a) During At all times from and after the Standstill Perioddate hereof, and until June 30, 2003, except as required in connection with the execution, delivery approval or performance of this Agreement and the consummation consent of the transactions pursuant to the Series C Purchase AgreementBoard of Directors of NAC as evidenced by a resolution duly adopted by such Board, the Investor Stockholders each Shareholder shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities not permit any entity controlled by such Shareholder to, in any manner, directly or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person toindirectly:
(i) acquire, or offer or agree to acquire, directly or indirectly, by purchase or otherwise, any beneficial interest in the NAC Capital Stock, or any securities convertible into or exchangeable for, or any other right to acquire NAC Capital Stock (except by way of (xA) stock dividends or other distributions made on a pro rata basis with respect to NAC Merger Shares acquired by such Shareholder as a result of the Beneficial Ownership of Merger Agreement or exercise of any Rightssuch Shareholders' Pre-Owned Shares, (yB) the issuance of securities upon the conversion or exchange of such NAC Merger Shares or (C) the issuance of securities in full or partial payment for any price payable by NAC upon the receipt redemption of any Capital such NAC Merger Shares) if, immediately following such acquisition, the members of the Shareholder Group would Beneficially Own, in the aggregate, more than 45% (the "STANDSTILL PERCENTAGE") of the then outstanding Common Stock (it being agreed and understood that, for purposes of determining whether the Shareholder Group would Beneficially Own in the aggregate more than the Standstill Percentage of the then outstanding Common Stock, rights or other securities from the Company pursuant to the terms (I) each Shareholder shall, for each share of the Series B Preferred Stock, Series C Preferred Stock or Warrants that is Beneficially Owned by such Shareholder and that is not, by it terms, convertible into shares of Common Stock, be deemed to own ten (or the exercise or conversion 10) shares of Common Stock (which number shall be subject to adjustment on account of any stock split, reorganization or recapitalizations) and (II) in addition to such Capital other shares of Common Stock rights or other securities)as are then outstanding, including any increase in the there shall be deemed to be outstanding a number of shares of Common Stock issuable upon conversion or exercise equal to the product of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Series C Preferred Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there then outstanding times (B) ten (10) (which number shall be excluded from subject to adjustment on account of any stock split, reorganization or recapitalizations)); provided, that if NAC repurchases or recapitalizes any of its shares and such calculation shares of Common Stock Beneficially Owned by Affiliates repurchases or recapitalization result in the members of the Investor Stockholders that are not also Beneficially Owned by Shareholder Group owning more than the Investor StockholdersStandstill Percentage at the effective time of such repurchase or recapitalization, up no member of the Shareholder Group shall be obligated to a maximum number divest him-, her- or itself of shares of Common NAC Capital Stock that will be excluded pursuant to this clause equal to one percent (1%) meet the Standstill Percentage, but no member of the Diluted Common Shareholder Group shall (except by way of (A) stock dividends or other distributions made on a pro rata basis with respect to NAC Merger Shares Outstandingacquired by such Shareholder as a result of the Merger Agreement or such Shareholders' Pre-Owned Shares, (B) the issuance of securities upon the conversion or exchange of such NAC Merger Shares or (C) the issuance of securities in full or partial payment for any price payable by NAC upon the redemption of such NAC Merger Shares) acquire any additional shares of NAC Capital Stock unless such acquisition would otherwise be permitted under this Section 6;
(ii) solicit proxies or consents or become a "participant" in a "solicitation" (Aas such terms are defined in Regulation 14A under the Exchange Act) solicit or participate in any solicitation of proxies or consents with respect to securities of NAC with regard to any Voting Stock, or matter;
(Biii) seek to advise advise, encourage or influence any Person with respect to the voting of any Voting Stock (securities of NAC, or induce, attempt to induce or in any manner assist any other than (x) the Investor Stockholders Person in initiating any stockholder proposal or tender or exchange offer for securities of NAC or any Affiliate change of control of NAC, or (y) other than in accordance with and consistent with for the recommendation purpose of the Board)convening a stockholders' meeting of NAC; provided, that the limitation contained (A) any Shareholder may tender in this clause any such tender or exchange offer and (iiB) shall not apply to any proposal recommended by no presentation before or other communication with the Board relating of Directors of NAC shall be deemed to constitute a Change in Control violation of the Company to be voted on by the Company’s stockholders that is not instituted foregoing restriction or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stockprohibition;
(iv) join a 13D Group acquire or agree to acquire, by purchase or otherwise, more than 5% of any class of equity securities of any entity that, prior to the time such Shareholder acquires more than 5% of such class, is publicly disclosed (other by filing with the Securities and Exchange Commission or otherwise), or is otherwise known to such Shareholder, to be the beneficial owner of more than a group comprising solely 5% of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting outstanding NAC Capital Stock or Non-Voting Convertible Securitiesany class or series thereof;
(v) effect make any public announcement regarding any possibility, intention, plan or seek, arrangement relating to a tender or exchange offer for securities of NAC or propose a business combination (whether publicly or otherwise) to effect any Change other similar transaction that would result in Control a change of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Mergercontrol), restructuringsale of assets, liquidation, dissolution liquidation or other extraordinary corporate transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize between such Shareholder and NAC, or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company require NAC to make a public announcement regarding any of the matters set forth foregoing;
(vi) deposit any securities of NAC in a voting trust or subject any securities of NAC to any arrangement or agreement with respect to the voting of securities of NAC, other than as provided in this Section 4.2.Agreement; or
(bvii) Ifform, at join or in any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result way participate in a Fundamental Changepartnership, limited partnership, syndicate or other group (ii) or otherwise act in concert with any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9other Person, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities except as a member of the Board and in compliance with and subject Shareholder Group), for the purpose of (A) acquiring, holding or voting of securities of NAC (other than pursuant to his the Merger Agreement), or her fiduciary duties as a member of the Board.
(dB) The Investor Stockholders agree that during the Standstill Period they will not directly taking any other actions restricted or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is prohibited under clauses (i) an Investor Stockholder or an Affiliate through (vi) of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders fromthis Section 6(a), the holders of a majority or announce an intention to do, or enter into any arrangement or understanding with others to do, any of the outstanding shares actions restricted or prohibited under clauses (i) through (vi) of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in this Section 12b-2 of the Exchange Act6(a).
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Sources: Lockup, Standstill and Voting Agreement (National Auto Credit Inc /De)
Standstill. From the date hereof until the later of (ai) During such time as it ceases to own any Securities and (ii) nine (9) months after the Standstill Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions Investors are no longer entitled to appoint an Investor Director pursuant to the Series C Purchase AgreementCertificate of Incorporation (such period, the “Standstill Period”), each Investor Stockholders agrees that it shall not, not and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective cause its Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person not to:
(a) acquire, or propose to acquire, beneficial ownership of any Securities or assets, or rights or options to acquire any Securities or assets, of the Company, including derivative securities representing the right to vote or economic benefits of any such Securities, other than (i) except (x) as pursuant to a result of the Beneficial Ownership of or exercise of any RightsPermitted Offer, (yii) for the receipt acquisition of any Capital Stock, rights or other securities from the Company Preferred Stock and Warrants pursuant to the terms and conditions set forth in the SPA, (iii) upon the conversion of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or and Class B Common Stock pursuant to the exercise or conversion of any such Capital Stock rights or other securities), including any increase terms and conditions set forth in the number SPA, the certificates of shares designation of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C such Preferred Stock or Warrants as a result and the Company’s Certificate of any anti-dilution or other terms thereof or Incorporation, (iv) upon the exercise of rights Warrants, pursuant to Section 4.1 hereof the terms and conditions set forth in the SPA and such Warrant, and (zv) Equity pursuant to the terms and conditions set forth in Article III of this Agreement; provided, that the transfer of Securities issued among the Investors and to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire from any Economic Right or Beneficial Ownership special purpose company formed to hold the beneficial ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or writtensuch Securities, to acquire Equity Securitiesthe extent in compliance with the transfer restrictions and procedures set forth in Section 9.1 of the SPA, in each caseshall not be deemed a violation of this Section 5.1(a), if the effect of provided any such acquisition would be that the Common Stock Beneficially Owned in the aggregate special purpose company is owned exclusively by the Investor Stockholders Investors and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their controlled Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(iib) make, or effect or commence, any tender or exchange offer, merger or other business combination involving the Company, other than pursuant to a Permitted Offer;
(Ac) solicit commence or participate in complete, or propose to commence or complete, any solicitation of proxies recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to any Voting Stockthe Company, other than pursuant to a Permitted Offer;
(d) make, or (B) in any way participate in, any Solicitation of proxies to vote or consent, or seek to advise or influence any Person with respect to the voting of of, any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation Securities of the Board); providedCompany, that the limitation contained or to become a Participant in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person Election Contest with respect to the voting of Company or grant a proxy to any other Person to vote any Securities held by such Voting StockInvestor;
(ive) form, join or in any way participate in a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other groupwith respect to, or otherwise act in concert with any third Person for in respect of, any Securities of the Company; provided, that the Investors’ formation of a 13D Group among themselves and any special purpose company formed to hold the beneficial ownership of acquiring, holding, voting or disposing such Securities shall not be deemed a violation of Voting Stock or Non-Voting Convertible Securitiesthis Section 5.1(e);
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viiif) otherwise act, alone or in concert with others, to effect seek representation on or seek, offer to control or propose (whether publicly or otherwise) to effect control of influence the management, the Board or the policies of the Company Company, except as expressly granted pursuant to the definitive agreements for the Transaction or to seek a waiver of any provision of this Agreement or by the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii)Board;
(ixg) take negotiate with or provide any action that results in the Investor Stockholders having information to file any Person with respect to, or amend a Schedule 13D indicating an intention, plan make and statement or proposal to do any of the foregoingPerson with respect to, or make any public announcement or proposal or offer with respect to, or act as a financing source for or otherwise invest in any Person in connection with, or otherwise solicit, seek or offer to effect any transactions or actions that are prohibited pursuant to this Section 5.1; or
(xh) otherwise take advise, assist or encourage any action that would other Person in connection with any transactions or could reasonably be expected actions prohibited pursuant to compel the Company to make a public announcement regarding any of foregoing (a)-(g). Notwithstanding the matters set forth foregoing, nothing in this Section 4.2.
(b) If, at 5.1 shall restrict in any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on way the actions described of any Investor Director in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities such person’s capacity as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the BoardDirector.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 1 contract
Sources: Investor Rights Agreement (Usec Inc)
Standstill. Subject to Section 3.2, from and after the Closing Date until the termination of this Agreement, neither Advance nor its Permitted Transferees shall directly or indirectly acquire, in the aggregate (calculated on each date of purchase of the then-outstanding Equity Securities based on the number of shares reported as outstanding in the most recent filing made by the Company with the SEC pursuant to the Exchange Act or the Securities Act, as applicable, containing such information), beneficial ownership of Equity Securities of the Company in excess of the percentage of the Equity Securities of the Company beneficially owned by Advance and such Permitted Transferees as of the closing of the IPO, as set forth in the final prospectus related thereto (after giving effect to any exercise of the underwriters’ over-allotment option) plus five (5) percentage points (such percentage, the “Advance Ownership Cap”). By way of example only, if as of the closing of the IPO, Advance and such Permitted Transferees beneficially own twenty-five percent (25%) of the aggregate amount of the then-outstanding Equity Securities of the Company as specified above, the Advance Ownership Cap would be thirty percent (30%). The foregoing shall not prohibit any of the following acquisitions, and any such acquisitions shall not be counted towards determining if Advance or any of such Permitted Transferees has acquired Equity Securities of the Company in excess of the Advance Ownership Cap:
(a) During the Standstill Period, except as required in connection with the execution, delivery Advance or performance any of this Agreement and the consummation such Permitted Transferees from acquiring Equity Securities of the transactions pursuant Company by way of stock splits, stock dividends, reclassifications, recapitalizations, or other distributions by the Company to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none all holders of Equity Securities of the Elevation Entities Company on a pro rata basis;
(b) acquisitions by Advance or their respective Affiliates shall, nor shall any of such Permitted Transferees of Equity Securities of the foregoing Persons act Company approved in concert with any other Person to:advance by a majority of the independent directors of the Board; or
(ic) except (x) as a result acquisitions of any Equity Securities of the Beneficial Ownership of or exercise of any RightsCompany by ▇▇▇▇▇▇▇, (y) for whether through the receipt of any Capital Stockissuance by the Company, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group▇▇▇▇▇▇▇, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 1 contract
Sources: Governance Agreement (Reddit, 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) During the Standstill Periodacquire, except as required in connection with the executionoffer or agree to acquire any shares of Common Stock (or options or warrants to acquire, delivery or performance securities convertible into or exchangeable for, shares of this Agreement and the consummation of the transactions pursuant to the Series C Purchase AgreementCommon Stock) if, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership such acquisition, Mutual (together with any Mutual Affiliates) would Beneficially Own more than a number of or exercise shares of any Rights, Common Stock in excess of a number equal to forty percent (y40%) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred outstanding shares of Common Stock or Warrants plus forty percent (or 40%) of the exercise or shares of Common Stock issuable upon conversion of any such Capital Stock rights or other securities), including any increase in the Convertible Notes plus forty percent (40%) of the number of shares of Common Stock issuable upon conversion or exercise conversation of the Series B Preferred Stock; provided, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as suchhowever, if anythat, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating computing such amount, the number of 37,900 shares of Common Stock Beneficially Owned by the Investor Stockholders and their AffiliatesInvista Capital Management, there Inc. ("Invista") on December __, 1997 shall be excluded from such calculation for as long as such shares of Common Stock are regarded as Beneficially Owned by Affiliates Invista (and no longer) and provided that no executive officer or director of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit Mutual or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders Principal or any Affiliate or (y) other than in accordance with and consistent with the recommendation employee of the Board); providedMutual, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust orPrincipal, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates other than officers, directors or employees of Invista charged with the 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 (as defined in Section 12b-2 40%) of the Exchange Act)shares of Common Stock outstanding plus forty percent (40%) of the shares of Preferred Stock outstanding;
(b) directly or indirectly 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, which Person has been nominated by the Nominating Committee of the Board of Directors;
(c) vote its shares of Common Stock for the election of any Person to the Board of Directors other than the Persons nominated by the Nominating Committee of the Board of Directors; or
(d) directly or indirectly make or solicit or assist any third party to make a tender or exchange offer to purchase any shares of Common Stock or make any public announcement concerning, or submit any written proposal to the Board of Directors of the Company for a merger, share exchange, acquisition of substantially all of the assets or similar transaction involving the Company.
Appears in 1 contract
Sources: Shareholders' Agreement (Principal Mutual Life Insurance Co)
Standstill. (a) During the Standstill PeriodLVMH agrees with Diageo that, except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions pursuant subject to the Series C Purchase Agreementprovisions of Articles 8.1(b), the Investor Stockholders 8.2 and 8.5, it shall not, and whether directly, or indirectly through any of its Affiliates or by Acting in Concert with any other person (the Investor Stockholders shall ensure that none of shares held by any such person being deemed, for the Elevation Entities or their respective Affiliates shallpurposes hereof, nor shall to be held by LVMH), acquire any of the foregoing Persons act issued ordinary shares of Diageo (the "Diageo Shares" or Interests in concert with any Diageo Shares (as defined below) beyond LVMH's holding at the date hereof other Person to:
than (i) except (x) as a result Diageo Shares, and Interests in Diageo Shares, allocated or offered in respect of the Beneficial Ownership such holding of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company Diageo Shares pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock a capitalisation issue or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof issue and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit in the event of a capital increase reserved to one or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (more persons other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company LVMH or any of its Subsidiaries;
Affiliates or any person with whom it is Acting in Concert, such number of Diageo Shares or Interests in Diageo Shares as is necessary to avoid any dilution of LVMH's holding of Diageo Shares at the time of such capital increase (vii) authorize which number of Diageo Shares or take any action to permit any Affiliate of Elevation to Interests in Diageo Shares may be named as a director candidate purchased by LVMH on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly open market or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) IfThe provisions of Article 8.1(a) shall be suspended with effect from the date on which any person or group of persons Acting in Concert shall announce a firm intention to make a tender offer for shares in Diageo until the date, if any, on which such offer lapses (either by reason of failure to sa tisfy any conditions of such offer or otherwise). Upon the lapse of such offer the provisions of Article 8.1
(a) shall resume in full force and effect but there shall be substituted for LVMH's holding at any the date hereof the percentage of Diageo Shares, and Interests in Diageo Shares, held directly or indirectly by LVMH immediately following the lapse of the offer.
8.2 Article 8.1 shall not prevent acquisitions of Diageo Shares or interests in Diageo Shares from time during the Standstill Periodto time where, (i) the Company has entered into a definitive agreementfollowing such acquisitions, the consummation holding (whether direct or indirect) of which would result Diageo Shares and interests in a Fundamental Change, or Diageo Shares of LVMH remains below 15%.
(iia) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement willDiageo agrees with LVMH that, subject to Section 4.2(cthe provisions of Article 8.5, it shall not, whether directly, or indirectly through any of its Affiliates or by Acting in Concert with any other person (the shares held by any such person being deemed, for the purposes hereof, to be held by Diageo), continue to applyacquire any of the ordinary issued shares of LVMH (the "LVMH Shares") or any Interests in LVMH Shares (as defined below).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(db) The Investor Stockholders agree provisions of Article 8.3(a) shall be suspended with effect from the date on which any person or group of persons Acting in Concert shall announce a firm intention to make a tender offer for shares in LVMH until the date, if any, on which such offer lapses (either by reason of failure to satisfy any conditions of such offer or otherwise). Upon the lapse of such offer the provisions of Article 8.3(a) shall resume in full force and effect but there shall be an exception such that during there shall be no prohibition in respect of LVMH Shares or interests in LVMH Shares from time to time where, following such acquisitions, the Standstill Period they will not holding (whether direct or indirect) of LVMH Shares and interests in LVMH Shares of Diageo remains below the holding of LVMH Shares, and Interests in LVMH Shares, held directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of by Diageo immediately following the Company in which the acquiring counterparty is lapse of
(ia) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)mutatis mutandis.
Appears in 1 contract
Sources: Partnership Agreement (LVMH Moet Hennessy Louis Vuitton)
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) During the Standstill Periodby purchase or otherwise, except as required Beneficially Own, acquire, agree 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 connection with the executioneach case, delivery or performance of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
than (i) except the Shares, (xii) as rights, options or warrants distributed on a result pro rata basis to all holders of the Beneficial Ownership class or classes of or exercise securities of any Rightsthe Company pursuant to distribution that has been approved by at least a majority of the Independent Directors constituting the entire Independent Committee, (yiii) for the receipt of any Capital Stock, rights or other securities acquired from the Company pursuant to a rights offer, exchange offer or similar transaction made by the terms Company which has been approved by at least a majority of the Series B Preferred Stock, Series C Preferred Stock Independent Directors constituting the entire Independent Committee; (iv) grants of restricted Voting Securities or Warrants options to purchase Voting Securities (or and the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise thereof) to an executive officer of the Series B Preferred StockCompany who may be deemed to be an Affiliate of the Shareholder or JFLEI under this Agreement, Series C Preferred Stock 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 Warrants as a result of any anti-dilution or other terms thereof or options to purchase Voting Securities (and the exercise thereof) to a nonemployee director of rights the Company who may be deemed to be an Affiliate of the Shareholder or JFLEI under this Agreement pursuant to Section 4.1 hereof and an equity compensation plan generally available to all nonemployee directors of the Company, which grants have been approved by at least a majority of the Independent Directors constituting the entire Independent Committee);
(zb) Equity Securities issued enter, propose to Appointed Directors enter into, or Investor Directors in their capacities as suchsolicit any merger or business combination, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer similar transaction involving the Company, or proposalpurchase, whether oral acquire, propose to purchase or written, to acquire Equity Securitiesor solicit the purchase or acquisition of any portion of the business or assets of the Company if, in each case, if the effect (i) in such transaction, all holders of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control Securities of the Company are not treated equally in terms of the dollar value at closing of the consideration, if any, to be voted on received by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, holders or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9transaction is entered into with Affiliates, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part members of a group shall be exempt from (a)(i))Group that includes the Shareholder, (a)(v)JFLEI or their Affiliates or other Persons that are acting in concert with the Shareholder, (a)(vi), (a)(ix) and (a)(x) above shall not be applicable JFLEI or their Affiliates to circumvent the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).foregoing provisions;
(c) Anything make, or in this Section 4.2 to any way participate in, any "solicitation" of "proxies" or become a "participant" in any "election contest" (as such terms are used in the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken proxy rules promulgated by the Investor Stockholders’ designee or designees on Commission under the Board in their capacities as a Exchange Act) for the removal of any member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).Independent Committee; or
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) During the Standstill Period(iii) below), except as required in connection with the execution, delivery or performance of this Agreement agrees that it and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders its respective Affiliates shall not, and without the Investor Stockholders shall ensure that none prior written consent of the Elevation Entities Board, which consent may be withheld in its sole and absolute discretion, directly or their respective Affiliates shallindirectly, nor shall any of the foregoing Persons act alone or in concert with any other Person toPerson:
(i) acquire, offer to acquire or agree to acquire, directly or indirectly, by purchase or otherwise, Beneficial Ownership of any 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 the Spectranetics Securities that such Person Beneficially Owns as of the date hereof as referenced in Section 12(c) of 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; (ii) encourage any Person to acquire, or (iii) advise any Person with respect to the acquisition 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 this Section (a) shall not apply to acquisitions resulting from (x) as a result the exercise of the Beneficial Ownership vested options held by Largey, Samek or 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 all holders of Spectranetics Securities (or any class(es) thereof) or from exercise of any Rightsrights so distributed;
b) solicit, (y) for the receipt of encourage any Capital Stockother Person to solicit, rights or other securities from the Company pursuant advise any Person with respect to the terms Solicitation of, or in any other way participate in, endorse or facilitate any Solicitation of, Proxies or consents with respect to any Spectranetics Securities, or become a Participant, or otherwise engage in any Solicitation of the Series B Preferred Stock, Series C Preferred Stock Proxies or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, consents (A) acquire with respect to any Economic Right matter submitted or Beneficial Ownership to be submitted to the vote of Equity the holders of any Spectranetics Securities at any annual or (B) authorize special meeting or make a tender offerby written consent, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stockthe 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;
c) advise or seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a memberSpectranetics Securities;
(iiid) deposit submit, encourage any Voting Stock in a voting trust orother Person to submit, except as otherwise provided advise or contemplated herein, subject any Voting Stock to any arrangement or agreement with assist any Person with respect to the voting 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 Voting 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;
(ivg) deposit any Spectranetics Securities in a voting trust or subject them to a voting agreement or other agreement or arrangement of similar effect or otherwise join or form a 13D partnership, limited partnership, limited liability company, syndicate or other Group (other than except insofar as a group comprising Group consisting solely of the Investor Stockholders and their Permitted Transfereesmembers of the Sweet 13D Group shall be deemed to exist at the Execution Date) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock any Spectranetics Securities, or Non-Voting Convertible Securities;
(v) effect for the purpose of circumventing or seek, offer or propose (whether publicly or otherwise) to effect avoiding any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision provisions of this Agreement Settlement Agreement, encourage, advise or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take assist any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal 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 (other than to participate therein as a stockholder on terms generally available to all of Spectranetics' stockholders); oror 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) otherwise to seek representation on the Board, (y) to seek the removal of any members of, or a change in the composition or size of, the 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 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 rights so distributed;
j) publicly disclose any intent, purpose, plan or proposal with respect to the Company, its Board, management, policies, or affairs or any of its securities or assets, or take any action that would or could reasonably be expected to compel require the Company to make a any public announcement regarding 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 Person in taking any action referenced in any of the matters set forth in this Section 4.2Sections 9(a) through (j) above.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 1 contract
Standstill. Without the prior written consent of the Placement Agent, from the date hereof until sixty (60) 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 Common Stock or common stock equivalents, other than an Exempt Issuance or (ii) file any registration statement or any amendment or supplement thereto. For purposes of this Agreement, “Exempt Issuance” means the issuance of (a) During the Standstill Periodshares of Common Stock or options to employees, except as required in connection with the execution, delivery officers or performance directors of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms any share or option plan duly adopted for such purpose, by a majority of the Series B Preferred Stocknon-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, Series C Preferred Stock or Warrants (or b) securities upon the exercise or exchange of or conversion of any securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such Capital Stock rights or other securities), including any securities have not been amended since the date of this Agreement to increase in the number of shares such securities or to decrease the exercise price, exchange price or conversion price of Common Stock issuable upon conversion such securities (other than in connection with stock splits or exercise combinations) or to extend the term of such securities, (c) the securities of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights Company issued pursuant to Section 4.1 hereof the Purchase Agreements and (zd) Equity Securities securities issued pursuant to Appointed Directors acquisitions or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership strategic transactions approved by a majority of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect disinterested directors of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill LimitCompany, provided that for purposes such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of calculating any registration statement in connection therewith during the number of shares of Common Stock Beneficially Owned by the Investor Stockholders prohibition period in Section 14 herein and their Affiliates, there provided that any such issuance shall only be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent Person (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting equityholders of any Voting Stock (other than (xa Person) the Investor Stockholders which is, itself or any Affiliate through its subsidiaries, an operating company or (y) other than an owner of an asset in accordance with and consistent a business synergistic with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control business of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect and shall provide to the voting Company additional benefits in addition to the investment of such Voting Stock;
(iv) join funds, but shall not include a 13D Group (other than a group comprising solely of transaction in which the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person Company is issuing securities primarily for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company raising capital or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth an entity whose primary business is investing in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2securities.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 1 contract
Sources: Placement Agency Agreement (Cognition Therapeutics Inc)
Standstill. The Executive covenants and agrees that during the Term and thereafter through the second anniversary of his Date of Termination (a) such period, the “Standstill Period”), without the prior written consent of the Company, the 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 the 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, except as required in connection with without the execution, delivery or performance of this Agreement and the consummation prior written consent of the transactions pursuant to the Series C Purchase AgreementCompany, the Investor Stockholders shall notExecutive covenants and agrees that he will not at any time, and the Investor Stockholders shall ensure that none of the Elevation Entities directly or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person toindirectly:
(i) except (x) as a result of the Beneficial Ownership of enter into, agree to enter into, commence or exercise of submit any Rightsmerger, (y) for the receipt of any Capital Stockconsolidation, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer offer, business combination, share exchange, recapitalization, restructuring or other offer or proposalextraordinary transaction involving any of the Ashford-Related Entities, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limitsubsidiary or division thereof, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize their respective securities or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy assets or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel require any of the Company Ashford-Related Entities to make a public announcement regarding the possibility of any of the matters set forth in this Section 4.2.such transaction;
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) tender any Person shall have commenced and not withdrawn equity securities of the Ashford-Related Entities into a bona fide public tender or exchange offer which if consummated would result in commenced by a Fundamental Change and third party other than a tender or exchange offer that the Board of Directors of one of the Ashford-Related Entities has affirmatively publicly recommended to such Ashford-Related Entity’s stockholders that such stockholders tender into such offer and has not recommended that its stockholders reject publicly withdrawn or changed such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) recommendation (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of such a withdrawal or change of recommendation, it shall not be a breach of this clause (ii) if the tendered or exchanged securities are withdrawn prior to the expiration of such tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).;
Appears in 1 contract
Sources: Employment Agreement (Braemar Hotels & Resorts Inc.)
Standstill. During the Standstill Term, except for (i) as otherwise contemplated by the Transaction Agreements or Section 3.2 below, (ii) as the Company’s supervisory board or management board shall otherwise specifically request in writing, or (iii) for any conversions, reclassifications, reorganizations, share dividends, share splits, reverse splits and similar events which occur with respect to the Ordinary Shares, neither the Investor nor any Permitted 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:
(a) During acquire Beneficial Ownership of Outstanding 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 Period, except as required in connection with the execution, delivery or performance of this Agreement and the consummation Parties would collectively Beneficially Own more than (i) 4.9% of the transactions Outstanding Ordinary Shares (as 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 Series C Purchase Seventh Target Warrant Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none or (iii) more than 14.9% of the Elevation Entities or their respective Affiliates shall, nor shall any Outstanding Ordinary Shares (as determined after giving effect to the Ordinary Shares issued upon the exercise of the foregoing Persons act in concert with any other Person to:
Seventh Target Warrant Agreement) after the purchase of Ordinary Shares pursuant to the Seventh Target Warrant Agreement but before the purchase of Ordinary Shares pursuant to the Tenth Target Warrant Agreement, or (iv) more than 19.9% of the Outstanding Ordinary Shares (as determined after giving effect to the Ordinary 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) except (x) notwithstanding the 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 required to dispose of any of their holdings of Outstanding Ordinary Shares even though such action resulted in the Standstill Parties’ Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof increasing; and (zii) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating clarification, the number of shares of Common Stock Beneficially Owned by limitations set forth in this Section 3.1(a) shall in no way prohibit, restrict or limit the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates ability of the Investor Stockholders that are 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 also Beneficially Owned by hold in excess of the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%relevant percentage(s) of Ordinary Shares set forth above during the Diluted Common Shares Outstandingtime periods set forth above;
(iib) (A) solicit propose, offer or participate in any solicitation of proxies with respect effort to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to acquire the Company or any of its Subsidiariessubsidiaries or all or substantially all of the assets of the Company and its subsidiaries taken as a whole;
(viic) authorize propose, offer or take participate in any action to permit any Affiliate tender offer, exchange offer, or other business combination or Change of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of Control transaction involving the Company with or any of its subsidiaries, or any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary corporate transaction involving the recommendation Company or any of the Boardits subsidiaries;
(viiid) 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 act, acting alone or in concert with others, seek to effect control or seek, offer or propose (whether publicly or otherwise) to effect control of influence the management, Board governance or policies of the Company Company;
(e) solicit powers of attorney, proxies, designations or written consents of shareholders, or conduct any binding or nonbinding referendum with respect to seek a waiver Ordinary Shares, or make or in any way participate in any “solicitation” of any provision “proxy” (power of this Agreement attorney) to vote any Ordinary Shares with respect to any matter, or become a participant in any contested solicitation for the voting and conversion limits set forth election of members of the supervisory board with respect to the Company (as such terms are defined or used in the Series B Certificate of Designation Exchange Act and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viiithe rules promulgated thereunder);
(ixf) take make or issue or cause to be made or issued any action that results 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 Purchased Shares;
(h) except as otherwise provided by applicable law, rule or regulation, publicly disclose, or cause or facilitate the Investor Stockholders having to file or amend a Schedule 13D indicating an intentionpublic disclosure of, any intent, purpose, plan or proposal to do obtain any waiver, consent under, or amendment of, any of these restrictions or bring any action or otherwise act to contest the validity or enforceability of these restrictions or seek a release from these restrictions or obligations; or
(i) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to the 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
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender act in concert with others or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable with respect to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Boardforegoing.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).
Appears in 1 contract
Sources: Investor Agreement (uniQure N.V.)
Standstill. (a) During Except as provided in Section 4.1(b), from the Closing until the later of (i) three years from the Closing, and (ii) three months after no Vivo Nominee serves on the Board (the “Standstill Period”), except as required in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders Vivo shall not, and nor shall it permit any Affiliate to, directly or indirectly, without the Investor Stockholders shall ensure that none prior consent of the Elevation Entities or their respective Affiliates shall, nor shall any Company (acting through a resolution of the foregoing Persons act in concert with any other Person to:Company’s Non-Vivo Directors):
(i) except acquire or agree to acquire, whether by purchase, tender or exchange offer, by forming, joining or otherwise participating in a partnership, syndicate or other Group, through the use of a derivative instrument or voting agreement, or otherwise, (xA) as a result of the Beneficial Ownership of additional Voting Securities or Convertible Securities after the Closing that would result in Vivo (together with its Affiliates and any parties acting as members of a Group with Vivo), having Beneficial Ownership of more than 33.0% in the aggregate of the shares of Voting Securities outstanding at such time (assuming (1) the exercise of any Rights, (y) all of then-outstanding Warrants for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the maximum number of shares of Common Stock issuable upon thereunder, regardless of whether such Warrants are then exercisable, and (2) the conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or Shares for the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will issuable thereunder, regardless of whether such Preferred Shares are then convertible, which number of shares shall be excluded included in the numerator and denominator for purposes of determining the percentage of Voting Securities Beneficially Owned by Vivo (together with its Affiliates and any parties acting as members of a Group with Vivo) for purposes of this clause (A)), except pursuant to Section 4.2 of this clause equal Agreement, pursuant to one percent (1%) the exercise of the Diluted Common Shares OutstandingWarrants, pursuant to the Securities Purchase Agreement or pursuant to the Company’s Certificate of Designation of Preferences, Rights and Limitations of Series D Convertible Preferred Stock, or (B) any direct or indirect ownership interest in any indebtedness or debt securities of the Company or any of its Subsidiaries, except pursuant to Section 4.2 of this Agreement;
(ii) (A) solicit make, or participate in any solicitation way participate, directly or indirectly, in any “solicitation” of proxies with respect “proxies” (as such terms are used in the rules of the SEC) to any vote Voting StockSecurities, or (B) seek to advise or knowingly influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate Securities or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iiiC) deposit any Voting Stock Securities in a any voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock Securities to any arrangement or agreement with any Person with respect to the voting of such any Voting StockSecurities, except for this Agreement;
(iii) make any public announcement of a proposal or offer (with or without conditions) with respect to any extraordinary transaction involving Vivo or its Affiliates and the Company including, without limitation, any tender offer, merger, consolidation or business combination;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) seek to effect any Change in Control recapitalization, reclassification, liquidation or dissolution of the Company;
(viv) effect or seek, offer or propose (whether publicly or otherwise) to effect disclose any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do arrangement by Vivo regarding the possibility of any of the foregoing; orevents described in clauses (i) through (iv) above;
(xvi) otherwise knowingly take any action that would or could reasonably be expected to compel require either the Company or Vivo under applicable law or the rules of the principal exchange on which the Company’s Common Stock is then listed or traded to make a public announcement regarding the possibility of any of the matters set forth events described in this Section 4.2clauses (i) through (iv) above; or
(vii) enter into any discussions, negotiations, agreements or understandings with any other third Person (excluding Vivo’s advisors) with respect to any of the foregoing.
(b) IfNotwithstanding the foregoing, at any time during the Standstill Periodrestrictions contained in Section 4.1(a) shall not (1) apply with respect to the designations of the Vivo Nominee and Vivo Board Observer in accordance with this Agreement, (i2) the Company has entered into prevent a definitive agreement, the consummation of which would result Vivo Director from taking any action in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties capacity as a member director of the Board.
Company, (d3) The Investor Stockholders agree that during prevent Vivo or any of its Affiliates from voting its Voting Securities in its discretion, (4) apply to the Standstill Period they will not directly acquisition of securities in or indirectly propose, effect control of another Person (including by way of merger or agree consolidation) or (5) apply to any transaction which if consummated acquisitions or investments by any bona fide employee benefit plan of Vivo or its Affiliates. In addition, the restrictions contained in Section 4.1(a) shall not prevent a private communication to the Board to the extent that such private communication would result in not reasonably be expected to require a public disclosure prior to any public announcement by the Company that it (or its Board) has approved or entered into an agreement with respect to a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder Transaction or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)Fundamental Transaction.
Appears in 1 contract
Standstill. Without the prior written consent of Placement Agent, from the date hereof until thirty (30) days after the Placement Securities are registered, 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 Shares equivalents, other than an Exempt Issuance or (ii) file any registration statement or any amendment or supplement thereto. For purposes of this Agreement, “Exempt Issuance” means the issuance of (a) During the Standstill Periodshares of Ordinary Shares or options to employees, except as required in connection with the execution, delivery officers or performance directors of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms any share or option plan duly adopted for such purpose, by a majority of the Series B Preferred Stocknon-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, Series C Preferred Stock or Warrants (or b) securities upon the exercise or exchange of or conversion of any securities exercisable or exchangeable for or convertible into Ordinary Shares issued and outstanding on the date of this Agreement, provided that such Capital Stock rights or other securities), including any securities have not been amended since the date of this Agreement to increase in the number of shares such securities or to decrease the exercise price, exchange price or conversion price of Common Stock issuable upon conversion such securities (other than in connection with stock splits or exercise combinations) or to extend the term of such securities, (c) the securities of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights Company issued pursuant to Section 4.1 hereof the Purchase Agreements and (zd) Equity Securities securities issued pursuant to Appointed Directors acquisitions or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership strategic transactions approved by a majority of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect disinterested directors of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill LimitCompany, provided that for purposes such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of calculating any registration statement in connection therewith during the number of shares of Common Stock Beneficially Owned by the Investor Stockholders prohibition period in Section 14 herein and their Affiliates, there provided that any such issuance shall only be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent Person (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting equity holders of any Voting Stock (other than (xa Person) the Investor Stockholders which is, itself or any Affiliate through its subsidiaries, an operating company or (y) other than an owner of an asset in accordance with and consistent a business synergistic with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control business of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect and shall provide to the voting Company additional benefits in addition to the investment of such Voting Stock;
(iv) join funds, but shall not include a 13D Group (other than a group comprising solely of transaction in which the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person Company is issuing securities primarily for the purpose of acquiring, holding, voting raising capital or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change an entity whose primary business is investing in Control of securities. Please confirm that the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect foregoing correctly sets forth our agreement by signing and returning to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than Placement Agents the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision enclosed copy of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).Agreement. By: Name: Title:
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) During the Standstill PeriodOrdinary Shares or options to employees, except as required in connection with the execution, delivery officers or performance directors of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms any share or option plan duly adopted for such purpose, by a majority of the Series B Preferred Stocknon-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, Series C Preferred Stock or Warrants (or b) securities upon the exercise or exchange of or conversion of any securities exercisable or exchangeable for or convertible into Ordinary Shares issued and outstanding on the date of this Agreement, provided that such Capital Stock rights or other securities), including any securities have not been amended since the date of this Agreement to increase in the number of shares such securities or to decrease the exercise price, exchange price or conversion price of Common Stock issuable upon conversion such securities (other than in connection with stock splits or exercise combinations) or to extend the term of such securities, (c) the securities of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights Company issued pursuant to Section 4.1 hereof the Purchase Agreements and (zd) Equity Securities securities issued pursuant to Appointed Directors acquisitions or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership strategic transactions approved by a majority of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect disinterested directors of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill LimitCompany, provided that for purposes such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of calculating any registration statement in connection therewith during the number of shares of Common Stock Beneficially Owned by the Investor Stockholders prohibition period in Section 14 herein and their Affiliates, there provided that any such issuance shall only be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent Person (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting equityholders of any Voting Stock (other than (xa Person) the Investor Stockholders which is, itself or any Affiliate through its subsidiaries, an operating company or (y) other than an owner of an asset in accordance with and consistent a business synergistic with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control business of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect and shall provide to the voting Company additional benefits in addition to the investment of such Voting Stock;
(iv) join funds, but shall not include a 13D Group (other than a group comprising solely of transaction in which the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person Company is issuing securities primarily for the purpose of acquiringraising capital or to an entity whose primary business is investing in securities. Please confirm that the foregoing correctly sets forth our agreement by signing and returning to the Placement Agents the enclosed copy of this Agreement. By: /s/ ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ Title: Authorized Representative Titan Partners Group LLC, holdinga division of American Capital Partners, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seekLLC ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, offer or propose (whether publicly or otherwise) ▇▇▇▇ ▇▇▇▇▇ New York, NY 10007 Attention: ▇▇▇▇ ▇▇▇▇▇ Email: **** Accepted and Agreed to effect any Change in Control as of the Company;
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 (vithe “Warrant”) effect certifies that, for value received, _____________ or seekits assigns (the “Holder”) is entitled, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than upon the Merger), restructuring, liquidation, dissolution or other transaction with respect terms and subject to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate limitations on a proxy or ballot of any other Person other than exercise and the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits conditions hereinafter set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) Ifforth, at any time during on or after the Standstill Perioddate hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on ____, 20301 (ithe “Termination Date”) but not thereafter, to subscribe for and purchase from Gorilla Technology Group Inc., a company organized under the Company has entered into a definitive agreementlaws of the Cayman Islands (the “Company”), up to ______ Ordinary Shares (as subject to adjustment hereunder, the consummation “Warrant Shares”). The purchase price of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group one Ordinary Share under this Warrant shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable equal to the Investor Stockholders (but all other provisions of this Agreement willExercise Price, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act2(b).
Appears in 1 contract
Sources: Placement Agency Agreement (Gorilla Technology Group Inc.)
Standstill. Without the prior written consent of Placement Agent, from the date hereof until sixty (60) 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 Common Stock or common stock equivalents, other than an Exempt Issuance or (ii) file any registration statement or any amendment or supplement thereto. For purposes of this Agreement, “Exempt Issuance” means the issuance of (a) During the Standstill Periodshares of Common Stock or options to employees, except as required in connection with the execution, delivery officers or performance directors of this Agreement and the consummation of the transactions pursuant to the Series C Purchase Agreement, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms any share or option plan duly adopted for such purpose, by a majority of the Series B Preferred Stocknon-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, Series C Preferred Stock or Warrants (or b) securities upon the exercise or exchange of or conversion of any securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such Capital Stock rights or other securities), including any securities have not been amended since the date of this Agreement to increase in the number of shares such securities or to decrease the exercise price, exchange price or conversion price of Common Stock issuable upon conversion such securities (other than in connection with stock splits or exercise combinations) or to extend the term of such securities, (c) the securities of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights Company issued pursuant to Section 4.1 hereof the Purchase Agreements and (zd) Equity Securities securities issued pursuant to Appointed Directors acquisitions or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership strategic transactions approved by a majority of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect disinterested directors of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill LimitCompany, provided that for purposes such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of calculating any registration statement in connection therewith during the number of shares of Common Stock Beneficially Owned by the Investor Stockholders prohibition period in Section 14 herein and their Affiliates, there provided that any such issuance shall only be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent Person (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting equityholders of any Voting Stock (other than (xa Person) the Investor Stockholders which is, itself or any Affiliate through its subsidiaries, an operating company or (y) other than an owner of an asset in accordance with and consistent a business synergistic with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control business of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect and shall provide to the voting Company additional benefits in addition to the investment of such Voting Stock;
(iv) join funds, but shall not include a 13D Group (other than a group comprising solely of transaction in which the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person Company is issuing securities primarily for the purpose of acquiringraising capital or to an entity whose primary business is investing in securities. Please confirm that the foregoing correctly sets forth our agreement by signing and returning to the Placement Agents the enclosed copy of this Agreement. By: /s/ ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ Title: Authorized Representative Titan Partners Group LLC, holdinga division of American Capital Partners, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seekLLC ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, offer or propose (whether publicly or otherwise) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇ Email: Accepted and Agreed to effect any Change in Control as of the Company;
date first written above: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Chief Financial Officer Address for notice: Quantum Computing Inc. ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Email: Warrant Shares: _________1 Initial Exercise Date: _____, 20252 This AGENT’S PURCHASE WARRANT (vithe “Warrant”) effect certifies that, for value received, American Capital Partners, LLC or seekits assigns (the “Holder”) is entitled, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than upon the Merger), restructuring, liquidation, dissolution or other transaction with respect terms and subject to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate limitations on a proxy or ballot of any other Person other than exercise and the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits conditions hereinafter set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) Ifforth, at any time during on or after the Standstill Perioddate referred to above as the Initial Exercise Date (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on ____, 20293 (ithe “Termination Date”) but not thereafter, to subscribe for and purchase from QUANTUM COMPUTING INC., Delaware corporation (the Company has entered into a definitive agreement“Company”), up to _______ shares of common stock (as subject to adjustment hereunder, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii“Warrant Shares”), par value $0.0001 per share (a)(iii), (a)(ivthe “Common Stock”) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member Company. The purchase price of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares one share of Common Stock not Beneficially Owned by under this Warrant shall be equal to the Investor Stockholders or any of their affiliates (Exercise Price, as defined in Section 12b-2 of the Exchange Act2(b).
Appears in 1 contract
Sources: Placement Agency Agreement (Quantum Computing Inc.)
Standstill. Subject to Section 1(i), from and including the Board Appointment Date until thirty-five (a35) During days after the Standstill Perioddate that no Icahn Nominee (including for the avoidance of doubt any Replacement) serves on the Board (it being understood that if each Icahn Nominee then serving on the Board gives the Company at least thirty-five (35) days advance written notice of his intent to resign as a director prior to resigning, except as required then the foregoing clause shall refer to the date that no Icahn Nominee (including for the avoidance of doubt any Replacement) serves on the Board rather than thirty-five (35) days after such date; it being further understood that if the applicable Icahn Nominee is no longer a member of the Board due to circumstances in connection with which the executionIcahn Group would be entitled to appoint a Replacement, delivery or performance such Icahn Nominee shall be deemed to continue to be a member of the Board for all purposes of this Agreement until such time as the Icahn Group irrevocably waives in writing any right to either designate such a Replacement or appoint such a Replacement) (such period, the “Standstill Period”), so long as the Company has not materially breached this Agreement and the consummation failed to cure such breach within five (5) business days of written notice from any member of the transactions pursuant Icahn Group specifying such breach, no member of the Icahn Group shall, directly or indirectly, and each member of the Icahn Group shall cause each of the Icahn Affiliates not to, directly or indirectly, with respect to the Series C Purchase Agreement, Company and its controlled affiliates which are not publicly traded entities (it being understood that the Investor Stockholders foregoing shall not, and not restrict the Investor Stockholders shall ensure that none Icahn Nominees from discussing such matters addressed below privately with other members of the Elevation Entities or Board solely in their respective Affiliates shall, nor shall any of capacity as a director in a manner consistent with the foregoing Persons act in concert with any other Person to:Icahn Nominees’ fiduciary duties to the Company):
(i) except solicit proxies or written consents of stockholders or conduct any other type of referendum (xbinding or non-binding) as a result with respect to, or from the holders of, the voting securities of the Beneficial Ownership Company (“Voting Securities”), or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in or exercise assist any third party in any “solicitation” of any Rightsproxy, (y) for the receipt of any Capital Stock, rights consent or other securities authority (as such terms are defined under the Exchange Act) to vote or withhold from the voting any Voting Securities (other than such encouragement, advice or influence that is consistent with Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any management’s recommendation in connection with such Capital Stock rights or other securitiesmatter), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stockencourage, or (B) seek to advise or influence any Person other person or assist any third party in so encouraging, assisting or influencing any person with respect to the voting giving or withholding of any Voting Stock proxy, consent or other authority to vote or in conducting any type of referendum (other than (x) the Investor Stockholders such encouragement, advice or any Affiliate or (y) other than in accordance with and influence that is consistent with the Company management’s recommendation of the Boardin connection with such matter); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock form or join in a voting trust orpartnership, except limited partnership, syndicate or a “group” as otherwise provided or contemplated hereindefined under Section 13(d) of the Exchange Act, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other groupSecurities, or otherwise act support or participate in concert with any effort by a third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction party with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.3;
(biv) If, present (or request to present) at any time during annual meeting or any special meeting of the Company’s stockholders, any proposal for consideration for action by stockholders or propose (or request to propose) any nominee for election to the Board or seek representation on the Board or the removal of any member of the Board, or encourage, advise or influence any other person or assist any third party in so doing;
(v) grant any proxy, consent or other authority to vote with respect to any matters (other than to the named proxies included in the Company’s proxy card for any annual meeting or special meeting of stockholders) or deposit any Voting Securities in a voting trust or subject them to a voting agreement or other arrangement of similar effect (excluding customary brokerage accounts, margin accounts, prime brokerage accounts and the like), in each case, except as provided in Section 4 below;
(vi) call or seek to call any special meeting of the Company or make any request under Section 220 of the Delaware General Corporation Law (“DGCL”) or other applicable legal provisions regarding inspection of books and records or other materials (including stocklist materials) of the Company or any of its subsidiaries;
(vii) institute, solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than to enforce the provisions of this Agreement;
(viii) without the prior approval of the Board, separately or in conjunction with any other person or entity 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 (publicly or to the Company) or participate in, effect or seek to effect, any Extraordinary Transaction; provided that the members of the Icahn Group shall be permitted to sell or tender their Voting Securities, and otherwise receive consideration, pursuant to any Extraordinary Transaction and provided further that if a third party (not a party to this Agreement or an affiliate of a party) commences an unsolicited tender offer or exchange offer for all of the outstanding Voting Securities that is not recommended by the Board, then the Icahn Group shall similarly be permitted to commence a tender offer or exchange offer for all of the outstanding Voting Securities at the same or higher consideration per share; or
(ix) request, directly or indirectly, any amendment or waiver of the foregoing in a manner that would reasonably likely require public disclosure by the Icahn Group or the Company. From the date of this Agreement until the end of the Standstill Period, (i1) the Icahn Group shall not directly or indirectly make, or cause to be made, by press release or similar public statement to the press or media (including social media), or in an SEC or other public filing or otherwise, any statement or announcement that disparages (as distinct from objective statements reflecting business criticism of the Company or its affiliates but not of individual officers or directors of the Company or its affiliates) the Company has entered into a definitive agreementor its affiliates or any of their respective officers or directors with respect to matters relating to their service at the Company or its affiliates (including any former officers or directors); and (2) neither the Company nor any of its officers or directors shall directly or indirectly make, or cause to be made, by press release or similar public statement to the press or media (including social media), or in an SEC or other public filing, any statement or announcement that disparages (as distinct from objective statements reflecting business criticism of the Icahn Group or its affiliates but not of individual officers or directors of the Icahn Group or its affiliates) any member of the Icahn Group or any of its officers or directors with respect to matters relating to the Company or its affiliates. For the avoidance of doubt, the consummation foregoing restrictions shall not be deemed to apply to advisors of which would result in a Fundamental Changethe Icahn Group or of the Company who are not, directly or indirectly, acting at the behest of, or for the benefit of, such party. From the date of this Agreement until the end of the Standstill Period, (ii1) the Icahn Group shall not permit any Person of its controlled Affiliates to do any of the items in this Section 3 that the Icahn Group is restricted from doing and shall have commenced and not withdrawn a bona fide public tender publicly encourage or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues support any other person to apply, the limitation on take any of the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt this Section 3 that the Icahn Group is restricted from (a)(i)), (a)(v), (a)(vi), (a)(ix) doing and (a)(x2) above the Company shall not be applicable permit any of its controlled Affiliates to do any of the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything items in this Section 4.2 3 that the Company is restricted from doing and shall not publicly encourage or support any other person to take any of the contrary notwithstanding, actions described in this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree 3 that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)restricted from doing.
Appears in 1 contract
Sources: Nomination and Standstill Agreement (Freeport-McMoran Inc)
Standstill. (a) During the Standstill Period, except so long as required in connection with the execution, delivery or performance of Company has not materially breached this Agreement and failed to cure such breach within five business days of written notice from the consummation Icahn Group specifying any such breach, the Icahn Group and its Affiliates will not, without the prior written consent of the transactions Company:
(a) acquire, offer, seek or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise (but excluding any action by the Company such as a stock dividend), Beneficial Ownership of Voting Stock of the Company if after giving effect to such acquisition the Icahn Group would Beneficially Own more than the higher of (x) 10% of the outstanding shares of Voting Stock of the Company and (y) such higher amount that any other person or group required to file on Schedule 13D is permitted to buy or own pursuant to the Series C Purchase Agreementterms of, the Investor Stockholders shall not, and the Investor Stockholders shall ensure that none of the Elevation Entities or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person to:
(i) except (x) as a result of being waived through, the Rights Plan (including any amendments thereto) or any replacement thereof or other rights plan implemented by the Company (and the Company agrees not to include a “trigger amount”, applicable to any other person or group not required to file on Schedule 13D, under the Rights Plan (including any amendments thereto) or any replacement thereof or other rights plan implemented by the Company, of more than 15% Beneficial Ownership of Voting Stock of the Company, unless such higher “trigger amount” also applies to any person or exercise of group required to file on Schedule 13D) or, if the Rights Plan (including any Rightsamendments thereto) and any replacement thereof and any other rights plan implemented by the Company, (y) for the receipt of have expired or are otherwise no longer in effect, such higher amount that any Capital Stock, rights other person or other securities from the Company group is permitted to buy or own pursuant to the terms of the Series B Preferred Stockof, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of being approved to acquire in accordance with, Section 203 of the Delaware General Corporation Law (and the Company agrees that it will grant similar waivers or approvals to the Icahn Group under the Rights Plan (including any anti-dilution amendments thereto) or replacement thereof or other terms thereof rights plan implemented by the Company or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors 203, as it has granted or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or writtenhereafter does grant, to acquire Equity Securities, in each case, if the effect of any such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder person or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstandinggroup);
(iib) (A) solicit make, or participate in any solicitation way participate, directly or indirectly, in any “solicitation” of proxies with respect “proxies” to any Voting Stockvote (as such terms are used in the rules of the SEC), or (B) seek to advise or influence any Person person with respect to the voting of of, any Voting Stock of the Company (other than (x) in an Icahn Designee’s capacity as a member of the Investor Stockholders or any Affiliate or (y) other than Board in accordance with and a manner consistent with the Board’s recommendation in connection with such matter);
(c) separately or in conjunction with any other person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, submit a proposal for or offer of (with or without conditions) (including to the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control Extraordinary Transaction. “Extraordinary Transaction” means any of the following involving the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder its Subsidiaries or any 13D Group of which any Investor Stockholder its or any Affiliate of an Investor Stockholder is their securities or a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely material amount of the Investor Stockholders and their Permitted Transferees) assets or other group, or otherwise act in concert with any third Person for the purpose businesses of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take : any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, tender offer or propose exchange offer, merger, acquisition, business combination, reorganization, restructuring, recapitalization, sale or acquisition of material assets, liquidation or dissolution (whether publicly or otherwise) to effect control of the managementcollectively, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designationan “Extraordinary Transaction”); provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during the Standstill Period, (i) the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
subparagraph (c) Anything in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board prevent an Icahn Designee acting in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties capacity as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control director of the Company in which from raising such matter at the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act).Board;
Appears in 1 contract
Standstill. (a) During The Investor Securityholders parties hereto agree that, from Closing until the earlier of (x) such time that the SLS Beneficial Ownership Percentage is less than 10% and (y) the consummation of a Fundamental Change (the “Standstill Period”), except as required in connection with the execution, delivery or performance of this Agreement the Transaction Agreements and the consummation of the transactions pursuant to contemplated hereby and thereby, without the Series C Purchase Agreementprior consent of the Company (evidenced by action of the Board), the Investor Stockholders Securityholders shall not, not and the Investor Stockholders Securityholders shall ensure that none cause each of the Elevation Entities their Affiliates not to, directly or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person toindirectly:
(i) except (x) as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, Company Securities or other rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock Conversion Shares or Warrants the Securities (or the exercise or conversion of any such Capital Stock Company Securities or other rights or other securities), including any increase in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Convertible Preferred Stock, Series C the Junior Preferred Stock Stock, the Notes or the Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 5.7 hereof and (z) Equity Company Securities issued to the Appointed Directors or Investor Nominated Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership (or economic right tantamount thereto) of Equity Company Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Company Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders Securityholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders Securityholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders Securityholders that are not also Beneficially Owned by the Investor StockholdersSecurityholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit make, or participate in any solicitation way participate, directly or indirectly, in any “solicitation” of proxies with respect “proxies” to any Voting Stockvote (as such terms are used in the rules of the SEC), or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders Securityholders or any Affiliate their Affiliates or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such any Voting Stock;
(iii) authorize, commence, encourage, support or endorse any tender offer or exchange offer for shares of Voting Stock (for the avoidance of doubt, subject to compliance with Section 8.1, tendering into any such offer will not violate this Section 5.6(a));
(iv) form, join or in any way participate in a 13D Group “group” as defined in Section 13(d)(3) of the Exchange Act (other than a group comprising comprised solely of the Investor Stockholders Securityholders and their Permitted Transferees) or other group), or otherwise act in concert with any third Person for the purpose of voting, acquiring, holding, voting or disposing of any Voting Stock or Non-Voting Convertible SecuritiesStock;
(v) effect publicly announce, propose or seek, submit to the Company a proposal or offer or propose (whether publicly or otherwise) to effect any of the following (each, a “Company Change in Control Event”): (1) a merger, consolidation or other business combination or transaction to which the Company is a party if the Voting Stock immediately prior to the effective date of such merger, consolidation or other business combination or transaction (or the securities such Voting Stock is converted or exchanged into), represents less than 50% of the Total Current Voting Power of the surviving entity (or its parent) following such merger, consolidation or other business combination or transaction; (2) an acquisition by any Person, entity or “group” (as defined in Section 13(d)(3) of the Exchange Act) of direct or indirect Beneficial Ownership of Voting Stock of the Company representing 50% or more of the Total Current Voting Power of the Company; (3) a sale of all or substantially all of the assets of the Company to any Person or Persons; or (4) a liquidation or dissolution of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders Securityholders having to file or amend a statement on Schedule 13D pursuant to Rule 13d-1(a) of the rules and regulations promulgated under the Exchange Act indicating an intention, plan or proposal with respect to do any of the events described in clauses (i) through (v) above or with respect to any recapitalization or restructuring of the Company;
(vii) otherwise act in concert with others (other than with other Investor Securityholders and their Affiliates) to publicly effect or seek, offer or propose to effect, control of the Company in such a manner that would result in the Investor Securityholders having to file or amend a statement on Schedule 13D pursuant to Rule 13d-1(a) of the rules and regulations promulgated under the Exchange Act; or
(viii) enter into any arrangements with any third party concerning any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2.
(b) If, at any time during 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 Fundamental ChangeCompany Change in Control Event, (ii) a third party who is not an Affiliate of the Investor Securityholders or an Affiliated Entity (a “Third Party”) acquires Beneficial Ownership of 20% or more of the outstanding Voting Stock; or (iiiii) any Person shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Company Change in Control Event and the Board has not recommended that its the stockholders of the Company reject such offer within the time period contemplated by Rule 14d-914d-9 under the Exchange Act, in each case, then for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(iiii), (a)(iiiiii), (a)(iviv), (v), (vi), (vii) and (viii) of Section 5.6(a) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ixthe Investor Securityholders and/or their Affiliates) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply)Securityholders.
(c) Anything in this Section 4.2 5.6 to the contrary notwithstanding, this Section 4.2 5.6 shall not be construed to prohibit or restrict any actions taken by the Investor Stockholders’ designee any designee, nominee or designees appointee (including the Appointed Directors and the Nominated Directors) on the Board Board, in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during Board or the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control exercise of the Company in which the acquiring counterparty is Investor Securityholders’ rights pursuant to Section 7.4 and 8.2 (iand any related disclosure on Schedule 13D pursuant to Rule 13d-1(a) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of rules and regulations promulgated under the Exchange Act).
Appears in 1 contract
Standstill. (a) During the Standstill Period, except Provided that nothing contained herein will prevent or prohibit EIS from purchasing Voting Stock (as required in connection with the execution, delivery or performance of this Agreement and the consummation defined below) of the transactions Company pursuant to subsection 5(b) or from acquiring Voting Stock pursuant to the conversion of the Series C Purchase AgreementA Preferred Stock or the Note or the exercise of the Warrant in accordance with their respective terms, the Investor Stockholders shall EIS will not, and directly or indirectly, without the Investor Stockholders shall ensure that none prior consent of the Elevation Entities or their respective Affiliates shall, nor shall any Board of Directors of the foregoing Persons act in concert with any other Person to:
Company (the "BOARD"), (i) except acquire (xor offer or agree to acquire) any Voting Stock; or (ii) enter into any merger, consolidation or similar transaction with the Company, unless, in the case of each of (i) and (ii), such transaction has been approved by the Board; provided, that the foregoing restrictions shall not be applicable in the event that any unaffiliated third party takes any such actions (in the case of share ownership, acquiring at least [****] % of the outstanding Common Stock, directly or indirectly). Notwithstanding the foregoing, EIS will not be obligated to dispose of any Voting Stock it owns if its percentage ownership is increased as a result of the Beneficial Ownership of or exercise of any Rights, (y) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase a decrease in the number of shares of Common Stock issuable upon conversion or exercise of the Series B Preferred Stock, Series C Preferred Stock or Warrants as a result of any anti-dilution or other terms thereof or the exercise of rights pursuant to Section 4.1 hereof and (z) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if any, (A) acquire any Economic Right or Beneficial Ownership of Equity Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Equity Securities, in each case, if the effect of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of shares of Common Stock Beneficially Owned by the Investor Stockholders and their Affiliates, there shall be excluded from such calculation shares of Common Stock Beneficially Owned by Affiliates of the Investor Stockholders that are not also Beneficially Owned by the Investor Stockholders, up to a maximum number of shares of Common Stock that will be excluded pursuant to this clause equal to one percent (1%) of the Diluted Common Shares Outstanding;
(ii) (A) solicit or participate in any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a member;
(iii) deposit any Voting Stock in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person with respect to the voting of such Voting Stock;
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other group, or otherwise act in concert with any third Person for the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(v) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or any of its Subsidiaries;
(vii) authorize or take any action to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company with the recommendation of the Board;
(viii) otherwise act, alone or in concert with others, to effect or seek, offer or propose (whether publicly or otherwise) to effect control of the management, Board or policies of the Company or to seek a waiver of any provision of this Agreement or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designation; provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in the Investor Stockholders having to file or amend a Schedule 13D indicating an intention, plan or proposal to do any of the foregoing; or
(x) otherwise take any action that would or could reasonably be expected to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.2outstanding.
(b) If, at any time during the Standstill Period, The provisions of this Section 5 will terminate: (i) if EIS owns less than ----------------------- [****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE SECURITIES ACT OF 1934, AS AMENDED. [****]% of the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or outstanding Voting Stock; (ii) if any Person shall have commenced and not withdrawn person or group, excluding EIS, any affiliate of Elan, or any group that includes Elan or any such affiliate, makes a bona fide public tender or exchange BONA FIDE offer to acquire Voting Stock which would, if consummated would successful, result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within bidder's beneficial ownership of at least [****] % of the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, then outstanding Voting Stock; or (iii) upon the limitation on second anniversary of the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions date of this Agreement will, subject to Section 4.2(c), continue to apply)Agreement.
(c) Anything in this Section 4.2 to The Company will give EIS prompt notice of the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken receipt by the Investor Stockholders’ designee or designees Company of any written notice couched in such terms as to put the Company reasonably on the Board in their capacities as a member notice of the Board and in compliance with and subject likelihood that a person or group has acquired or is proposing to his or her fiduciary duties as a member acquire an aggregate position of at least [****]% of the Boardoutstanding Voting Stock, the Company receiving any BONA FIDE offer to purchase or acquire [****]% or more of the Voting Stock or all or substantially all of the assets of the Company, and any Board determination to seek an acquirer for in excess of [****]% of the Voting Stock.
(d) The Investor Stockholders agree that during EIS will cause its affiliates and associates to comply with the Standstill Period they will not provisions of this Section 5, whether directly or indirectly proposeindirectly, effect individually or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member as part of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from), the holders of a majority of the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates "group" (as such term is defined in Section 12b-2 of Rule 13d-5 under the Exchange Act). When used in this Section 5, the term EIS includes EIS together with its affiliates and associates.
Appears in 1 contract
Sources: Securities Purchase Agreement (Photogen Technologies Inc)
Standstill. (a) During Until the Standstill Period, except as required in connection with earliest to occur of (A) the execution, delivery or performance of this Agreement and the consummation tenth anniversary of the transactions purchase of the Senior Preferred Stock pursuant to the Series C Preferred Stock Purchase Agreement, (B) the Investor Stockholders date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and (ii) less than 10% of the Actual Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders; provided that the Shareholders at such time are entitled to designate not more than one director pursuant to Article 3 hereof, and (C) termination under Section 2.2 (such period, the “Standstill Period”) (provided that the Standstill Period shall end (x) with respect to the DLJ Shareholders, on the date on which the DLJ Shareholders no longer own any Conversion Shares, and (y) with respect to the Greenwich Street Shareholders, on the date on which the Greenwich Street Shareholders no longer own any any Conversion Shares), each Shareholder will not, and the Investor Stockholders shall ensure that none will cause each of the Elevation Entities its Affiliates (other than Exempt Affiliates) not to, directly or their respective Affiliates shall, nor shall any of the foregoing Persons act in concert with any other Person toindirectly:
(i) except acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Voting Securities or voting rights or direct or indirect rights or options to acquire any Voting Securities of the Company or any of its Affiliates other than (xA) an acquisition as a result of the Beneficial Ownership of a stock split, stock dividend or exercise of any Rightssimilar recapitalization, (yB) for the receipt of any Capital Stock, rights or other securities from the Company pursuant to the terms of the Series B Preferred Stock, Series C Preferred Stock or Warrants (or the exercise or conversion of any such Capital Stock rights or other securities), including any increase in the number acquisition of shares of Common Stock issuable upon conversion or exercise which are subject to the Exchange Agreement, (C) with the prior written consent of the Series B Preferred Stockchairman of the Board of Directors and the chief executive officer of the Company, Series C Preferred Stock acquisitions by the Apollo/Blackstone Shareholders of up to a collective aggregate amount of 3,000,000 shares (as such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or Warrants any other recapitalization of the Company and as a result of reduced to reflect any anti-dilution or other terms thereof or the exercise of rights such acquisitions pursuant to Section 4.1 hereof and (z2.1(a)(i)(C) Equity Securities issued to Appointed Directors or Investor Directors in their capacities as such, if anyof the Original Agreement) of Common Stock, (AD) acquire stock options or similar rights granted by the Company to an Affiliate of such Shareholder as compensation for performance as a director or officer of the Company or its subsidiaries (and any Economic Right or Beneficial Ownership of Equity Securities shares issuable upon exercise thereof), (E) transfers between such Shareholder and Related Transferees as permitted under Section 4.1(f) or (BF) authorize or make a tender offerany rights which are granted to all shareholders of the Company (and any shares issuable upon exercise thereof); provided, exchange offer or other offer or proposalhowever, whether oral or written, to acquire Equity Securities, in each case, that if the effect Shareholders or any of such acquisition would be that the Common Stock Beneficially Owned in the aggregate by the Investor Stockholders and their Affiliates (including, without limitation, any 13D Group of which any Investor Stockholder or any Affiliate thereof is a member) would exceed the Standstill Limit, provided that for purposes of calculating the number of in good faith inadvertently acquire not more than 500,000 shares of Common Stock Beneficially Owned in violation of these provisions and within 15 days after the first date on which the Shareholders have actual knowledge (including by way of written notice given by the Investor Stockholders and Company) that a violation has occurred Shareholders or any of their Affiliates, there Affiliates shall be excluded from such calculation have transferred any shares of Common Stock Beneficially Owned held in violation of these provisions to unrelated third parties so that the Shareholders and their Affiliates no longer beneficially own any such shares or have any agreement or understanding relating to such shares, this Section 2.1 shall be deemed to not have been violated; and provided, further, that no violation of this provision shall be deemed to have occurred by Affiliates reason of the Investor Stockholders that are not also Beneficially Owned indirect acquisition of beneficial ownership of securities resulting from (x) investments in investment funds as to which no Shareholder or Affiliate thereof has control or power to control with respect to voting or investment decisions or (y) acquisitions of securities by the Investor Stockholders, up a limited partner in any Shareholder or Affiliates thereof as to a maximum number of shares of Common Stock that will be excluded pursuant which limited partner no Shareholder or its Affiliates has control or power to this clause equal to one percent (1%) of the Diluted Common Shares Outstandingcontrol;
(ii) (A) solicit make or participate in cause to be made any solicitation of proxies with respect to any Voting Stock, or (B) seek to advise or influence any Person with respect to the voting of any Voting Stock (other than (x) the Investor Stockholders or any Affiliate or (y) other than proposal for a Reorganization Transaction except for Dispositions in accordance with and consistent with the recommendation of the Board); provided, that the limitation contained in this clause (ii) shall not apply to any proposal recommended by the Board relating to a Change in Control of the Company to be voted on by the Company’s stockholders that is not instituted or proposed by any Investor Stockholder or any Affiliate of any Investor Stockholder or any 13D Group of which any Investor Stockholder or any Affiliate of an Investor Stockholder is a memberArticle 4;
(iii) deposit form, join or in any Voting Stock way participate in a voting trust or, except as otherwise provided or contemplated herein, subject any Voting Stock to any arrangement or agreement with any Person Group with respect to any securities of the voting Company or its Affiliates, other than with other Shareholders or Affiliates of such any Shareholder; provided, however, that in the case of securities other than Voting StockSecurities, Shareholders may participate in a Group with respect thereto with the prior approval of a majority of the entire Board of Directors (which approval is requested in a manner which does not require disclosure publicly or to any third party);
(iv) join a 13D Group (other than a group comprising solely of the Investor Stockholders and their Permitted Transferees) or other groupmake, or otherwise act in concert with any third Person for way cause or participate in, any “solicitation” of “proxies” to vote (as those terms are defined in Regulation 14A under the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting Convertible Securities;
(vExchange Act) effect or seek, offer or propose (whether publicly or otherwise) to effect any Change in Control of the Company;
(vi) effect or seek, offer or propose (whether publicly or otherwise) to effect any recapitalization (other than the Merger), restructuring, liquidation, dissolution or other transaction with respect to the Company or its Affiliates, or communicate with, seek to advise, encourage or influence any Person, in any manner, with respect to the voting of, securities of the Company or its SubsidiariesAffiliates, or become a “participant” in any “election contest” (as those terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or its Affiliates (other than non-public communications with other Shareholders or Affiliates of any Shareholder which would not require public disclosure by any Person or solicitation of proxies in support of the election of Shareholder Designees, Management Directors and Unaffiliated Directors nominated by the Board of Directors in accordance with Section 3.1 hereof in circumstances in which a third party is soliciting parties for the election of nominees not nominated by the Board of Directors);
(v) initiate, propose or, except with the prior approval of a majority of the entire Board of Directors (which approval is requested in a manner which does not require disclosure publicly or to any third parties) otherwise solicit stockholders for the approval of one or more stockholder proposals with respect to the Company or its Affiliates or induce or attempt to induce any other Person to initiate any stockholder proposal or seek election to or seek to place a representative on the Board of Directors of the Company (except pursuant to Section 3.1 of this Agreement) or its Affiliates or seek the removal of any member of the Board of Directors of the Company or its Affiliates (for this purpose, the actions of the Shareholder Designees in communicating (without public disclosure or disclosure to third parties) with the Board of Directors in their capacity as directors of the Company, and non-public communication by a Shareholder with other Shareholders or Affiliates of any Shareholder which would not require public disclosure by any Person, shall not be deemed to be in contravention of this paragraph (v));
(vi) in any manner, agree, attempt, seek or propose (other than making any request for permission with respect thereto which would not require disclosure publicly or to any third party) to deposit any securities of the Company or its Affiliates in any voting trust or similar arrangement or to subject any securities of the Company or its Affiliates to any other voting or proxy agreement, arrangement or understanding (other than any such agreements or understandings with other Shareholders or Affiliates of any Shareholder);
(vii) authorize offer, sell or take transfer any action Voting Securities or rights to permit any Affiliate of Elevation to be named as a director candidate on a proxy or ballot of any other Person other than the proxy or ballot of the Company receive Voting Securities except for Dispositions in accordance with the recommendation of the BoardArticle 4;
(viii) disclose any intention, plan or arrangement, or make any public announcement (or request permission to make any such announcement other than making any request for permission which would not require disclosure publicly or to any third party), or induce any other Person to take any action, inconsistent with the foregoing;
(ix) enter into any negotiations, arrangements or understandings with any third party with respect to any of the foregoing;
(x) advise, assist or encourage or finance (or assist or arrange financing to or for) any other Person in connection with any of the foregoing;
(xi) otherwise act, alone or act in concert with others, to effect seek to control or seek, offer or propose (whether publicly or otherwise) to effect control of influence the management, Board of Directors or policies of the Company or its Affiliates (for this purpose, the actions of the Shareholder Designees in their capacity as directors of the Company shall not be deemed to seek be in contravention of this paragraph (xi)); or
(xii) request a waiver of any provision of the provisions of any of paragraphs (i) through (xii) of this Agreement Section 2.1 (except any request which would not require disclosure publicly or the voting and conversion limits set forth in the Series B Certificate of Designation and Series C Certificate of Designationto any third party); provided, however, that no action by an Appointed Director or Investor Director (solely in their capacities as such) shall be deemed to violate this Section 4.2(a)(viii);
(ix) take any action that results in 2.1 shall not restrict or inhibit the Investor Stockholders having rights of a Shareholder to file or amend exercise its voting rights as a Schedule 13D indicating an intention, plan or proposal to do any stockholder of the foregoing; or
Company (x) otherwise take any action that would or could reasonably be expected subject to compel the Company to make a public announcement regarding any of the matters set forth in this Section 4.23.2).
(b) IfAffiliates of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliates, (ii) are not Related Transferees of any Shareholder, (iii) are not in possession of any material non-public Information provided to Shareholders by the Company, its subsidiaries or representatives pursuant to Section 3.4 hereof or otherwise, and (iv) do not have voting or dispositive power over any Conversion Shares (such affiliates being “Exempt Affiliates”) shall not be subject to this Section 2.1.
(c) The DLJ Shareholders represent and warrant to the Company that the DLJ Parent Entities are now, and at any time during the Standstill PeriodPeriod that they take actions that would be otherwise prohibited by Section 2.1(a) will be, (i) Exempt Affiliates. Based upon the Company has entered into a definitive agreement, the consummation of which would result in a Fundamental Change, or (ii) any Person shall have commenced foregoing representations and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Fundamental Change and the Board has not recommended that its stockholders reject such offer within the time period contemplated by Rule 14d-9, for so long as such condition continues to apply, the limitation on the actions described in clauses (a)(ii), (a)(iii), (a)(iv) (and any related acquisition of Beneficial Ownership solely by being part of a group shall be exempt from (a)(i)), (a)(v), (a)(vi), (a)(ix) and (a)(x) above shall not be applicable to the Investor Stockholders (but all other provisions of this Agreement will, subject to Section 4.2(c), continue to apply).
(c) Anything warranties in this Section 4.2 to the contrary notwithstanding, this Section 4.2 shall not prohibit or restrict any actions taken by the Investor Stockholders’ designee or designees on the Board in their capacities as a member of the Board and in compliance with and subject to his or her fiduciary duties as a member of the Board.
(d) The Investor Stockholders agree that during the Standstill Period they will not directly or indirectly propose, effect or agree to any transaction which if consummated would result in a Change of Control of the Company in which the acquiring counterparty is (i) an Investor Stockholder or an Affiliate of an Investor Stockholder or (ii) a member of a 13D Group of which an Investor Stockholder or an Affiliate of an Investor Stockholder is also a member, in each case unless such transaction is approved by (or in the case of a tender or exchange offer, is conditioned on the receipt of tenders from2.1(c), the holders of a majority of Company will consider the outstanding shares of Common Stock not Beneficially Owned by the Investor Stockholders or any of their affiliates (as defined in Section 12b-2 of the Exchange Act)DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Shareholder Agreements (Apollo Investment Fund Iv Lp)