Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly: (i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control; (ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4; (iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or (xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2). (b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the 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. (a) Until the earliest "Standstill Termination Date" (as hereinafter defined), Purchaser and its affiliates (which for purposes hereof shall not include Penske or any of its subsidiaries) will not, directly or indirectly, without the express permission of the Corporation's Board of Directors, (A) purchase or offer to occur 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 writing (in form reasonably acceptable to the Corporation) to be subject to and bound by the provisions of this Section 4.10; PROVIDED, 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 "Right of First Refusal Agreement" being executed in connection herewith, (ii) purchase additional Common Stock that does not represent more than 5% of the Corporation's aggregate outstanding shares of Common Stock, (iii) except to the extent limited by the Right of First Refusal Agreement, vote shares and exercise rights as directors and/or (iv) if and only if Purchaser owns at 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 more than 20.5% of the Corporation'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 tenth sixth anniversary of the purchase date of the Senior Preferred Stock pursuant to the Preferred Stock Purchase this Agreement, and (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% that ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ no longer serves as Chief Executive Officer of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and Corporation (ii) less than 10% unless within 120 days of the Actual Voting Powertermination of ▇▇. ▇▇▇▇'▇ service a successor is appointed who is approved by Purchaser, 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 unreasonably withheld 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2delayed).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
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. (a) Until During the earliest to occur of period commencing on the Closing and ending on the Standstill Termination Date (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreementas defined below), (B) the 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 Company is not more than one director pursuant to Article 3 in breach of its obligations under this Agreement (including Section 1 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 of the Purchaser Parties (so long as such Purchaser Party is an Affiliate of the beneficial owner of the Company securities issued under the Purchase Agreement) shall not, and will shall cause each of its controlled Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) acquireengage in any hostile or takeover activities with respect to the Company (including by means of a tender offer or soliciting proxies or written consents, offer other than as recommended by the Board);
(ii) acquire or propose to acquireacquire beneficial ownership of additional Common Stock (other than the Common Stock issuable upon exercise of the Warrants) or other Company securities that in the aggregate, together with their beneficial ownership of any other Common Stock, is equal to beneficial ownership of twenty percent (20%) or agree to acquire, by purchase or otherwise, any Voting Securities or more of the voting power of the outstanding Common Stock (taking into account the voting rights of the Common Stock underlying the Warrants and the Series F Preferred Stock); provided that the foregoing shall not prohibit or direct apply to the receipt of any (A) Common Stock paid as dividends on the Purchased Series E Preferred Stock held by the Purchaser or indirect rights any of its Permitted Transferees or options any Common Stock issued in exchange for the redemption of the Purchased Series E Preferred Stock held by the Purchaser or any of its Permitted Transferees in each case in accordance with the Series E Certificate of Designations and the Purchase Agreement or (B) or (C) any New Common Stock issued to the Purchaser or any of its Permitted Transferees pursuant to Section 4.07 of the Purchase Agreement, and such Series E Preferred Stock, Common Stock and New Common Stock shall not be taken into account for purposes of establishing compliance with the foregoing;
(iii) acquire or propose to acquire any Voting Securities other securities of the Company or any securities of any Affiliates of the Company;
(iv) call a special meeting of the Stockholders; or
(v) propose to remove, or vote to remove, any Directors of the Company (other than a Purchaser Designated Director in accordance with Section 1).
(b) Specifically, but without limiting Section 3(a), during the period commencing on the Closing and ending on the Standstill Termination Date, without the prior written consent of the Company, each of the Purchaser Parties shall not, and shall cause its controlled Affiliates not to, directly or indirectly:
(i) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination, partnership, joint venture, acquisition or similar transaction involving the Company or any of its Affiliates or their properties, except as expressly permitted hereby
(ii) make or in any way participate in any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 of Regulation 14A under the Exchange Act) or written consents to vote, seek to influence, or advise others with respect to the voting of any voting securities of the Company or any of its Affiliates (other than (A) an acquisition in a Purchaser Designated Director’s capacity as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with the prior written consent member 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or officer of the Company or its subsidiaries (and any shares issuable upon exercise thereofBoard), (E) transfers between such Shareholder and Related Transferees as permitted under Section 4.1(f) or (F) any rights which are granted to all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities “group” (within the meaning of the Company or its Affiliates, other than with other Shareholders or Affiliates Section 13(d) of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 any of its Affiliates, 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);
(viv) 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company Company, except through the Purchaser Designated Directors or its Affiliates as permitted by Section 3(c);
(for this purposev) propose to remove, the actions of the Shareholder Designees in their capacity as directors or vote to remove, any Directors of the Company shall not be deemed (other than pursuant to be in contravention the exercise of the Purchaser’s right to nominate Purchaser Designated Directors pursuant to Section 1);
(vi) publicly disclose any intent, plan or arrangement inconsistent with this paragraph (xi))Agreement; or
(xiivii) request a waiver of any of advise, assist or encourage others in connection with the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 2.1above.
(c) The DLJ Shareholders represent Notwithstanding the foregoing provisions of this Section 3, the foregoing provisions shall not, and warrant are not intended to:
(i) prohibit any Purchaser Party or its controlled Affiliates from privately communicating with, including making any offer or proposal to, the Board;
(ii) restrict in any manner how any Purchaser Party or its controlled Affiliates vote their Common Stock or other Company securities, except as provided in Section 2;
(iii) restrict the manner in which any Purchaser Designated Director may (A) vote on any matter submitted to the Company that Board or the DLJ Parent Entities are nowStockholders, and at any time during (B) participate in deliberations or discussions of the Standstill Period that they Board (including making suggestions or raising issues to the Board) in his or her capacity as a member of the Board, or (C) take actions that would be otherwise required by his or her exercise of legal duties and obligations as a member of the Board or refrain from taking any action prohibited by Section 2.1(ahis or her legal duties and obligations as a member of the Board;
(iv) will berestrict any Purchaser Party or any of its Permitted Transferees from selling or transferring any of their Company securities to any other Purchaser Party or its Permitted Transferees or any successor of such Purchaser Party that, Exempt Affiliates. Based in any such case, agrees to be bound by the provisions contained in this Agreement; or
(v) restrict any Purchaser Party or any of its Permitted Transferees from receiving (A) any Series E Preferred Stock or Common Stock paid as dividends on the Securities or issued upon the foregoing representations and warranties redemption of the Purchased Series E Preferred Stock, in this Section 2.1(c)each case pursuant to the Series E Certificate of Designations, the Company will consider Purchase Agreement and the DLJ Parent Entities to be Exempt Affiliatesother agreements contemplated thereby or (B) any New Common Stock in accordance with Section 4.07 of the Purchase Agreement.
Appears in 3 contracts
Sources: Securities Purchase Agreement (LSB Industries Inc), Board Representation and Standstill Agreement (LSB Industries Inc), Board Representation and Standstill Agreement
Standstill. The 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) Until Upon the earliest occurrence of any event of default under any of the Noteholder Documents (other than as set forth in (c) below), the Noteholders shall not exercise any remedy that they may have under the Noteholder Documents to declare all or any portion of the Noteholder 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 Noteholders to each of the Lenders and the other Noteholders, unless the 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 12.1(a) of the Purchase Agreement.
(b) Upon the occurrence of any event of default under any of the Lender Documents (other than as set forth in (c) below), the Lenders shall not exercise any remedy that they may have under the Lender Documents to declare all or any portion of 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 breach 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 if such obligations have been automatically accelerated pursuant to 11 of the Credit Agreement.
(c) 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 Collateral; provided, that: (i) no such instruction shall occur during any standstill period set forth above other than upon the direction of both (A) the tenth anniversary Required Lender Creditors and (B) the Required Holders; (ii) after the standstill period set forth above, absent commencement of an Insolvency or Liquidation Proceeding, (A) the purchase of Majority Revolving Lenders shall have the Senior Preferred Stock pursuant exclusive right to make such instructions as to the Preferred Stock Purchase AgreementReceivable 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 claim or statement of interest with respect to the Secured Obligations, (B) each Secured Creditor may take any action (not adverse to the date Liens on which the Apollo/Blackstone Shareholders ownCollateral securing the Secured Obligations, collectively, Voting Securities which would represent (i) less than 10% or the rights of the Total Voting PowerCollateral Agent or the Secured Creditors to exercise remedies in respect thereof) in order to preserve or protect its Lien on the Collateral, excluding voting securities beneficially owned by in each case in accordance with the Shareholders other than the Apollo/Blackstone Shareholders and (ii) less than 10% terms 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 hereofthis Agreement, and (C) termination under Section 2.2 (such periodeach 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 otherwise seeking 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 disallowance of the Company or claims of such Secured Creditor, including any of its Affiliates other than (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer of the Company, acquisitions claim secured 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 splitsCollateral, reverse stock splitsif any, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions each case in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities the terms of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) with respect to the Company or its Affiliates, or communicate with, seek to advise, encourage or influence any Personthis Agreement, in any manner, with respect to the voting of, securities of the Company or its Affiliates, 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 each case 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 terms 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 3 contracts
Sources: Intercreditor Agreement, Intercreditor and Collateral Agency Agreement (Stonemor Partners Lp), Intercreditor and Collateral Agency Agreement (Stonemor Partners Lp)
Standstill. 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 (a) Until the earliest to occur calculated on each date of (A) the tenth anniversary of the purchase of the Senior Preferred Stock 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 Preferred Stock Purchase AgreementExchange Act or the Securities Act, (B) the date on which the Apollo/Blackstone Shareholders ownas applicable, 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 containing 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 Sharesinformation), each Shareholder will not, and will cause each beneficial ownership of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 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 its Affiliates other than (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with the prior written consent such Permitted Transferees has acquired Equity Securities of the chairman Company in excess of the Board Advance Ownership Cap:
(a) Advance or any of Directors and the chief executive officer such Permitted Transferees from acquiring Equity Securities of the Company, acquisitions Company by the Apollo/Blackstone Shareholders way 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 dividends, reclassifications, recapitalizations, or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stock, (D) stock options or similar rights granted distributions by the Company to an Affiliate all holders of such Shareholder as compensation for performance as a director or officer Equity Securities of the Company on a pro rata basis;
(b) acquisitions by Advance or its subsidiaries (and any shares issuable upon exercise thereof), (E) transfers between of such Shareholder and Related Permitted Transferees as permitted under Section 4.1(f) or (F) any rights which are granted to all shareholders of Equity Securities of the Company (and any shares issuable upon exercise thereof); provided, however, that if the Shareholders or any of their Affiliates approved 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 advance 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 independent 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi))Board; or
(xiic) request a waiver acquisitions of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder Equity Securities of the Company (subject to Section 3.2).
(b) Affiliates of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliatesby ▇▇▇▇▇▇▇, (ii) are not Related Transferees of any Shareholder, (iii) are not in possession of any material non-public Information provided to Shareholders whether through the issuance by the Company, its subsidiaries the exercise or representatives pursuant to Section 3.4 hereof conversion of Equity Securities of the Company by ▇▇▇▇▇▇▇, 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 3 contracts
Sources: Governance Agreement (Reddit, Inc.), Governance Agreement (Huffman Steve Ladd), Governance Agreement (Reddit, Inc.)
Standstill. Buyer agrees that, except as contemplated by Section 8.02, from the date hereof until the earlier of (a) Until the earliest to occur of (A) the tenth five year anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase AgreementClosing Date, (Bb) the date on which the Apollo/Blackstone Shareholders ownCompany either accepts or enters into an agreement, collectively, Voting Securities which would represent (i) less than 10% of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders an agreement in principle or 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) similar document with respect to the DLJ Shareholdersan Acquisition Proposal made by any Person other than Buyer (or announces an intention to do so), on (c) the date on which the DLJ Shareholders no longer own any Conversion SharesCompany rejects or fails to accept a 100% Acquisition Proposal from Buyer that Buyer is permitted to make under the terms of this Article 8 and that the Company is required to accept under the terms of this Agreement, and or (yd) with respect to the Greenwich Street Shareholders, on the date on which the Greenwich Street Shareholders no longer own of any any Conversion Shares), each Shareholder will not, and will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) acquire, offer to acquire, or agree to acquire, breach 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 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 shall not permit its Affiliates to, acting either alone or in concert with any other Person 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) the five year anniversary of the Closing Date, (ii) the date on which the Company consummates an Acquisition Proposal made by a Person or Group other than Buyer, (Aiii) an acquisition 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 this Article 8 and that the Company is required to accept under the terms of this Agreement and (iv) the 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 “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:
(a) acquire or offer, seek, propose or agree to acquire, by any means whatsoever, including by means of any purchase or exchange of shares or any business combination, Beneficial Ownership of any Voting Securities or any assets of the Company or any Subsidiary;
(b) make any 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 vote of any holder of Voting Securities in connection with any such solicitation; or
(d) sell, pledge, encumber or otherwise transfer or agree to transfer (a result of a stock split“Transfer”), stock dividend directly or similar indirectly, any Voting Securities Beneficially Owned by Buyer or its Affiliates or any Voting Securities held by the Voting Trust except (i) pursuant to any merger, consolidation, reorganization, recapitalization, (B) the acquisition tender offer, exchange offer, or other similar transaction approved by a majority of shares of Common Stock which are subject to the Exchange AgreementUnaffiliated Directors, (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer or a self-tender 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(Cii) of the Original Agreement) 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 director or 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 Buyer who agrees in writing to all shareholders of the Company (and any shares 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 be bound 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 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 terms of this provision shall be deemed to have occurred by reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
Agreement and (iii) form, join or in any way participate in pursuant to a Group with respect bona fide pledge to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that a financial institution. Notwithstanding anything in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) with respect foregoing to the Company or its Affiliatescontrary, or communicate with, seek to advise, encourage or influence any Person, it is agreed that the restrictions set forth in any manner, with respect to the voting of, securities of the Company or its Affiliates, 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 this Section 8.01 will 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 prevent Buyer or its Affiliates or induce its representatives from engaging in brokerage, investment advisory 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or influence the management, Board trust and fiduciary, arbitrage, trading and lending activities in the normal and usual course 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)business.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
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) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) the exercise of convertible securities acquired in compliance with the terms of this Agreement (including the acquisition of shares of Common Stock or 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 Common Senior Preferred Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original AgreementCompany) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. The Greenwich Street Shareholders represent and warrant to the Company that the Greenwich Street Parent Entities are now, and at all times during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities and the 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. (a) Until the earliest to occur of (A) the tenth anniversary 7.1 Each of the purchase Remgro and SAS hereby:
7.1.1 represents and warrants to the other that, 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 to make a mandatory offer for the Target pursuant to Rule 9 of the Senior Preferred Stock pursuant Code; and
7.1.2 undertakes to the Preferred Stock Purchase Agreement, (B) other that following the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent of this Agreement (for so long as this Agreement is in force):
(i) less than 10% neither it nor any member of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and its Group nor Bidco shall; and
(ii) less than 10% 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 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 Actual Voting PowerCode, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders; 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 Shareholders at such time are entitled to designate not more than one director pursuant to Article 3 hereofissued, and (C) termination under Section 2.2 (to be issued, share capital of the 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 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 period, the "Standstill Period") (provided securities.
7.3 Each Consortium Member acknowledges and agrees that the Standstill Period shall end provisions of the Confidentiality Agreement continue to apply, in particular clause 12 (xRestrictions on Share Acquisitions). Each Consortium Member warrants to the other Consortium 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) for its due diligence concerning, evaluation of, or decision to invest in the Target Group; or (ii) 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 will cause each of its Affiliates (tax or other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 economic considerations involved in such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)investment.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 2 contracts
Sources: Consortium Bid Conduct Agreement, Consortium Bid Conduct Agreement
Standstill. (a) Until The Chez Parties agree that, for a period of twelve (12) months following the earliest to occur of date hereof, the Chez Parties will not join a 13D Group (A) the tenth anniversary other than a group consisting solely of the purchase Chez Parties and their Affiliates 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 Securities.
(b) 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 (1) make or in any way participate in the “solicitation” of “proxies” (as such terms are used in the rules and regulations of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 (xSEC) with respect to any Voting Securities, (2) propose any stockholder resolutions under Rule 14a-8 of the DLJ ShareholdersSecurities Exchange Act of 1934, on as amended, (3) seek to call a meeting of stockholders of the date on which Company, (4) seek to take any action by the DLJ Shareholders no longer own written consent of the stockholders of the Company, or (5) seek to advise or influence any Conversion Shares, and (y) other Person with respect to the Greenwich Street Shareholdersvoting of the Voting Securities.
(c) The Chez Parties agree that, on for a period of twelve (12) months following the date on which hereof, the Greenwich Street Shareholders no longer own Chez Parties, individually or in concert with others acting as a 13D Group will not deposit any Voting Securities in a voting trust or, except as otherwise provided or contemplated herein, subject any Conversion SharesVoting Securities to any arrangement or agreement with any Person with respect to the voting of such Voting Securities.
(d) 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 to seek offer or propose (whether publicly or otherwise) to effect control of the management, board of directors (including the removal of any director) or policies of the Company.
(e) The Chez Parties agree that, for a period of twelve (12) months following the date hereof, they will not issue any communication or make any written statement, including but not limited to in a Schedule 13D or 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 Release Group Members (as defined herein).
(f) The Chez Parties and the Company agree that the foregoing paragraphs (a) through (e) shall not prohibit the Chez Parties, each Shareholder will notindividually or in concert with others acting as a "group" as defined under Section 13(d) of the Exchange Act, or any of the Chez Parties' principals, directors, stockholders, members, general partners and will cause each of its Affiliates (other than Exempt Affiliates) not toaffiliates, directly or indirectly:
from (i) acquire, offer taking any other action with respect to acquire, the Company 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 held by the Chez Parties or (ii) from taking any action (including, without limitation, those described in the foregoing paragraphs (a) through (e)) should the Company not comply with Section 2 of its Affiliates other than (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange this Agreement, (C) with or if the prior written consent of Chez Parties reasonably believe that it is acting in the chairman of the Board of Directors and the chief executive officer best interests 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)’s shareholders.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement (Blue Calypso, Inc.)
Standstill. (a) Until 7.13.1 From the earliest to occur date hereof until the Completion Date or earlier termination of (A) this Agreement, the tenth anniversary Company shall cause the business and affairs of the purchase 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 Senior Preferred Stock Company in the normal and usual course of business or pursuant to the Preferred Stock Purchase Agreement, (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% annual business plan of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and (iiCompany) 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with the prior written consent of the chairman Purchaser (which consent shall not be unreasonably withheld), the Company shall:
(a) use commercially reasonable endeavours to (i) preserve intact the present operations of the Board Sites and preserve its rights under the applicable Land Leases, (ii) preserve intact its business organization and goodwill associated with the Sites, 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 Directors and its borrowing or indebtedness in the chief executive officer 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;
(c) neither create, incur, nor agree to create nor incur Indebtedness (except pursuant to facilities disclosed to the Purchaser as part 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 other recapitalization of due diligence on the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stock, (D) stock options or similar rights granted 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 Company shall not, without the prior consent of the Executive Committee, create, incur, or agree to an Affiliate create or incur Indebtedness (except pursuant to facilities disclosed to the Purchaser in the Company Disclosure Letter or as part of the due 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 Shareholder additional Indebtedness as compensation for performance 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 a director approved by the Executive Committee; Provided, further that nothing contained in this Clause 7.13.1(c) shall (a) prevent or officer of restrict the Company or its subsidiaries (and the Sellers from refinancing or replacing 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 all shareholders of existing borrowing listed in Schedule III that is obtained by the Company (x) without any adverse terms, conditions or costs being imposed on the Purchaser in connection therewith, (y) on terms and any shares issuable upon exercise thereof); providedconditions no less favorable than the refinanced or replaced borrowing, however, that if the Shareholders or (z) from a party other than a Related Party of any of their Affiliates the Sellers; or (b) utilize or draw down any existing unutilized working capital limit already sanctioned by Lenders in good faith inadvertently acquire favour of the Company; Provided that, 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 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 500,000 shares of Common Stock 150 Sites are dismantled 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) any calendar quarter, it being clarified 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 longer beneficially own any such shares or have any agreement or understanding relating sales pursuant to such shares, this Section 2.1 shall dismantling will be deemed subject to not have been violated; and provided, further, that no violation of this provision shall be deemed to have occurred by reason of the indirect acquisition of beneficial ownership of securities resulting from cap set out in sub-clause (xi) 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlabove;
(iie) make commence, construct or cause enter into commitment to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities construct Towers outside the annual business plan of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 orCompany, except with the prior approval of a majority consent of the entire Board of Directors Executive Committee;
(which approval is requested in a manner which does not require disclosure publicly f) neither terminate any Material Contract nor enter into any new agreement or contract similar to any third partiesMaterial Contract (other than as provided in 7.13.1(g) otherwise solicit stockholders for below) with any Person. It is clarified that nothing contained herein shall prohibit the approval of one or more stockholder proposals with respect Company from entering into MSAs, provided such MSAs are not on terms and conditions materially adverse to the Company than the terms of the existing MSAs or its Affiliates industry practice.
(g) not terminate any vendor contracts, which are Material Contracts, nor enter into any new agreement or induce contract similar to any such contract with any Person other than in the ordinary course of business. Vendor contracts, which are Material Contracts, other than in the ordinary course of business can be entered into with the prior written consent of the 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 attempt rights of material value nor reverse any reserves in the Audited Financial Statements as of June 30, 2015 other than in accordance with the Accounting Principles;
(i) neither materially nor adversely alter any insurance policies in effect as of the date hereof for the Sites;
(j) not make or commit to induce any other Person capital expenditures at any existing Sites except for any replacement capital expenditures or expenditures incurred in relation to initiate any stockholder proposal new Operators in the ordinary course of business or seek election 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), including any Contract providing for the furnishing of services to or seek by, providing for the rental of property, real, personal or mixed, to place a representative on or from, providing for the Board lending or borrowing of Directors money, providing for the leasing of property, to or from, or otherwise requiring payments, to or from, any such Person. It is clarified that this Clause 7.13.1(k) shall not apply to: (i) any 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 on substantially similar terms and conditions as the existing Contracts while giving due consideration for expansion; and (except pursuant to Section 3.1 of this Agreementiii) 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) new Contracts with the Board of Directors in their capacity as existing executive officers, or directors or stockholders (whether direct or indirect) 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2an annualized aggregate limit of INR 5,00,00,000/- (Rupees Five Crores).
(bl) Affiliates not make any material changes in the financial terms of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliates, (ii) are not Related Transferees the employment agreements of any ShareholderSenior Management Employee, other than in the ordinary course of business consistent with past practice.
7.13.2 Except as contemplated by, or required for implementation of, this Agreement or with the prior written consent of the Purchaser (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") which consent shall not be subject unreasonably withheld), the Company shall:
(a) neither declare, pay nor set aside for payment any 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 other agreements of any character obligating it to issue any shares of share capital or other equity securities provided that this Section 2.1.Clause 7.13.2 shall not apply to the payment of dividend or to the redemption or conversion of preference shares issued under the Investment Agreement;
(b) neither make nor authorize any change, which will have an adverse effect on the transaction contemplated herein, in its certificate of incorporation or constitutional documents of the Company;
(c) The DLJ Shareholders represent and warrant neither materially change, nor permit to the Company that the DLJ Parent Entities are nowbe materially changed, and at any time during the Standstill Period that they take actions that would accounting or Tax procedure or practice, nor make, nor permit to be otherwise prohibited by Section 2.1(a) will bemade, Exempt Affiliates. Based upon the foregoing representations and warranties any Tax election (other than as set forth in this Section 2.1(c)Agreement) nor settle nor compromise any Tax liability, except as required due to a change in the Company will consider applicable Law or to comply with an Order;
(d) pay all Taxes due and payable in a 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 DLJ Parent Entities to Purchaser with copies of the Monthly Management Financials, which shall be Exempt Affiliates.accompanied by the Company’s then current net Liabilities as of the end of such month;
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (American Tower Corp /Ma/)
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) From and after the 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 Investor will not, and will cause each of its Affiliates (other than Exempt Affiliates) Investor Affiliate not to, directly or indirectly, acquire Beneficial Ownership of shares of Issuer Common Stock, including for purposes of this 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 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 Beneficial Ownership of Issuer Common Stock (i) pursuant to the Purchase Agreement (unless, for the avoidance of doubt, the representation of the Investor 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 Issuer), including rights offerings and distributions made generally to holders of Issuer Common Stock (or other equity securities of the Issuer) as a result of their ownership of Issuer Common Stock (or other equity securities of the Issuer) including pursuant to a shareholder rights plan or similar plan or agreement, (iii) as a result of the exercise (or exchange) of any rights 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 case of an action pursuant to this clause (z), Investor has, subsequent to such date, negotiated in good faith with the Issuer Board for a period of at least thirty (30) days as to the terms of such proposed offer, then in each case, the Investor Affiliates will be entitled to commence and accept for purchase and purchase shares of Issuer Common Stock pursuant to a tender or exchange offer so long as such tender or exchange offer (such tender or exchange offer meeting the requirements set forth in this Section 1.1(b), 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 tendered and not withdrawn, when purchased by the Investor 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 as of the date such Permitted Offer is commenced, disregarding for purposes of calculating the number of outstanding shares of Issuer Common Stock 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 in its sole discretion, other than, in the event no Third Party Offer is outstanding or is made, in each case, during the pendency of such Permitted Offer, the Minimum Condition; and
(v) provides for consideration payable in cash, common stock or other securities of the Investor 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’s board of directors) equal to or greater than the closing price of the Issuer Common Stock on Nasdaq on the Trading Day immediately prior to the earlier of (x) the public announcement of such Permitted Offer and (y) commencement of such Permitted Offer.
(c) In the event the Investor Affiliates make a Permitted Offer, the Issuer will furnish the Investor Affiliates with all information concerning the Issuer required by the Exchange Act to be 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 behalf of Investor or any Investor Affiliate not to, in any manner, directly or indirectly:
(i) acquireenter into or agree, effect or seek, offer or propose (whether publicly or otherwise) to acquireeffect, or agree announce any intention to acquireeffect or cause or participate in or in any way assist, by purchase facilitate or encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in: (A) except to the extent otherwise specifically permitted by this Agreement, any Voting Securities acquisition of any Issuer Common Stock (or voting rights Beneficial Ownership thereof) or direct or indirect rights or options to acquire any Voting Securities material portion of the Company 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 Affiliates other than Subsidiaries (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 longer beneficially own any such shares or have any agreement or understanding relating to such sharesthat, this Section 2.1 shall be deemed to clause does not have been violated; and provided, further, that no violation of this provision shall be deemed to have occurred by reason of the indirect acquisition of beneficial ownership of securities resulting restrict any Investor Affiliate from (x) investments in investment funds as to which no Shareholder opposing publicly or Affiliate privately any tender or exchange offer, merger or other business combination involving the Issuer or any Subsidiary thereof has control or power to control with respect to voting or investment decisions or (y) acquisitions Transferring any shares of securities by a limited partner in Issuer Common Stock pursuant to such tender or exchange offer, merger or other business combination); or (C) any Shareholder recapitalization, restructuring, liquidation, dissolution or Affiliates thereof as other extraordinary transaction with respect to which limited partner no Shareholder Issuer or any of its Affiliates has control or power to controlSubsidiaries;
(ii) except as provided in Article 3, make or cause participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined under Regulation 14A under the Exchange Act) to be made 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 for of a Reorganization Transaction except for Dispositions in accordance with Article 4third 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 any securities 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, except that this subsection does not restrict (x) the Investor Directors from participating as members of the Company Issuer Board and any committees thereof in their capacity as such and (y) the Investor from joining or its Affiliates, other than with other Shareholders or Affiliates of in any Shareholder; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate way participating in a 13D Group or otherwise acting in concert with respect thereto with the prior approval of a majority of the entire Board of Directors (which approval is requested any Person, in a manner which does not require disclosure publicly or each case, to any third partyexercise its rights under Section 1.1(d)(ii)(B);
(iv) make, take any action which would or in would reasonably be expected to force Issuer to make a public announcement regarding any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, or become a "participant" types of matters set forth in any "election contest" clause (as those terms are defined or used in Rule 14a-11 under the Exchange Acti) 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)above;
(v) initiatebring any action, propose oror otherwise act, except with to contest 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 validity 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 (vSection 1.1(d));; or
(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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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, discussions or arrangements or understandings with any third party with respect to any of the foregoingforegoing (except as otherwise expressly provided herein).
(e) Unless earlier terminated or made inapplicable pursuant to Section 1.1(f), 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 tolling of such restrictions pursuant to Section 1.1(f) will not result in any extension of the period 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) or (ii) of this Section 1.1(f) has occurred and resulted in the 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 occurred within six (6) months of the date on which the Investor was released from such restrictions, then so long as such transaction is not being actively pursued at such time, the 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 event that a tender offer or exchange offer for at least thirty-five percent (35%) of the Issuer Common Stock is commenced (within the meaning of Section 14(d) of the Exchange Act) by a third Person which, for the avoidance of doubt, is not an Investor Affiliate (and not involving any breach of Section 1.1(d)) which tender offer or exchange offer, if consummated, would result in such third party (or any 13D Group of which such third party is a member) becoming the Beneficial Owner of securities representing greater than either thirty-five percent (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 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 to be elected or appointed to the Issuer Board as Investor Directors pursuant to Article 3 hereof are either (x) advisenot 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, assist or encourage 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 finance an involuntary petition shall be filed seeking (x) liquidation, reorganization or assist other relief in respect of the Issuer or arrange financing to any material Subsidiary or forits debts, or of a substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar Law now or hereafter in effect or (y) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Issuer or any other Person material Subsidiary or for a substantial part of its assets, and, in connection with 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 foregoing;
(xi) otherwise act in concert with others, to seek to control or 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 foregoing shall not be deemed to be in contravention of this paragraph (xi))entered; or
(xiivii) request 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 waiver 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 provisions material allegations of a petition filed against it in any such proceeding, or (E) make a general assignment for the benefit of paragraphs 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) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliatesmerger, (ii) are not Related Transferees of any Shareholderconsolidation, (iii) are not Change of Control Transaction, or (iv) other business combination transaction unless, in possession 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 material non-public Information provided notice to Shareholders by the Company, its subsidiaries or representatives Investor pursuant to Section 3.4 hereof or otherwise1.1(g), in each case, Investor will be entitled to engage in private discussions with, 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c)make private proposals to, the Company will consider Issuer Board or management of the DLJ Parent Entities Issuer with respect to be Exempt Affiliatessuch 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. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) From the date on which hereof until the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent fifth anniversary after the date the Common Stock is first Publicly Traded (i) less than 10% of as defined in 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, Charter as in effect 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 Shareshereof), each Shareholder will notwithout PRAECIS' prior written consent, and will cause each neither Purchaser nor any of its Affiliates (other than Exempt Affiliates) not towill, directly or indirectly:
(ia) acquire, offer or propose to acquire, or agree to acquire, by purchase or otherwise, any Voting Securities or voting rights Securities, or direct or indirect rights or options to acquire (through purchase, exchange, conversion or otherwise), any Voting Securities (as defined herein) if, after giving effect to any such acquisition, Purchaser, alone or together with its Affiliates, would beneficially own Voting Securities representing more than 8.2% of the Company or any voting power of all then outstanding Voting Securities, provided, however, that notwithstanding anything to the contrary contained in this Agreement, the foregoing 8.2% limitation shall not be deemed to be violated if the percentage of the voting power of all outstanding Voting Securities represented by Voting Securities beneficially owned by Purchaser and its Affiliates other than (A) an acquisition is increased as a result of a stock split, stock dividend or similar recapitalization, (B) decrease in the acquisition number of shares outstanding Voting Securities caused by a repurchase of Common Stock which are subject to the Exchange Agreement, (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer of the Company, acquisitions securities 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 PRAECIS or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stock, (D) stock options or similar rights granted action taken 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 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlPRAECIS;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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);
(ivb) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those such terms are defined used in Regulation 14A the proxy rules of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act) with respect to the Company or its Affiliates, or communicate with")), seek to advise, encourage or influence any Person, in any manner, person or entity with respect to the voting of, securities of the Company or its Affiliates, 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 DesigneesVoting Securities, 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 of PRAECIS 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 person to initiate any stockholder proposal proposal; provided, however, that Purchaser shall not, in any event, be deemed to "solicit" or seek election to be a participant in a "solicitation" for purposes of this subparagraph (b) by reason of the exercise by Purchaser or seek its Affiliates of voting rights with respect to place a representative on any Voting Securities beneficially owned by Purchaser or its Affiliates;
(c) make any proposal, whether written or oral, to the Board of Directors of the Company (except pursuant to Section 3.1 PRAECIS, any director or officer 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 4;
(viii) disclose any intention, plan or arrangementPRAECIS, or make any public announcement (concerning such a proposal, with respect to a tender offer for any Voting Securities, a merger or request permission to make any such announcement other than making any request for permission which would not require disclosure publicly business combination, sale or to any third party)transfer of assets, liquidation or induce any other Person to take any action, inconsistent with the foregoingextraordinary corporate transaction involving PRAECIS;
(ixd) enter into form, join or in any negotiations, arrangements or understandings with any third party way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any of the foregoingVoting Securities;
(xe) advisedeposit any Voting Securities beneficially owned by Purchaser or its Affiliates into a voting trust or subject any such Voting Securities to any arrangement or agreement with respect to the voting of any such Voting Securities or any agreement having similar effect, assist other than a trust or encourage or finance (or assist or arrange financing similar arrangement to or for) any other Person in connection with any of the foregoingwhich only Purchaser and its Affiliates are parties;
(xif) execute any written stockholder con-sent with respect to any Voting Securities;
(g) otherwise act act, alone or in concert with others, to seek to control affect or influence the control in any material respect of the management, policies or Board of Directors of PRAECIS, or policies make any public statement with respect thereto;
(h) knowingly and intentionally sell or otherwise transfer any Shares to any "person" (as defined in Section 13 (d)(3) of the Company 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 prohibited by or inconsistent with the foregoing; or
(j) take any other action inconsistent with the foregoing, provided that seeking any waiver from PRAECIS or any amendment of any covenant or agreement of or restriction on Purchaser or its Affiliates (for contained in this purpose, Agreement in a manner which is not calculated or reasonably likely to be disseminated to the actions of the Shareholder Designees in their capacity as directors of the Company public shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of "action inconsistent with the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)foregoing".
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 2 contracts
Sources: Stock and Warrant Purchase Agreement (Praecis Pharmaceuticals Inc), Stock and Warrant Purchase Agreement (Praecis Pharmaceuticals Inc)
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant Notwithstanding anything to the Preferred Stock Purchase Agreementcontrary contained herein, (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent Seller hereby acknowledges and agrees that (i) less than 10% 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 Total Voting Power, excluding voting offering of such shares under the Securities Act or in a transaction that is not in violation of applicable securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and Laws; (ii) less than 10% of the Actual Voting Power, excluding voting securities beneficially owned by Preferred Shares shall not be converted to Common Shares prior to the Shareholders other than date (the Apollo/Blackstone Shareholders; provided that the Shareholders at period prior to such time are entitled to designate not more than one director pursuant to Article 3 hereof, and (C) termination under Section 2.2 (such perioddate, the "Standstill “Waiting Period"”) (provided that is the Standstill Period shall end earlier of (x) with respect to the DLJ Shareholders, on six (6) months after the date on which the DLJ Shareholders no longer own any Conversion Shares, of issuance and delivery to Seller of such Preferred Shares or (y) with respect to the Greenwich Street Shareholders, on effective date of a registration statement regarding the date on which offering of such shares by the Greenwich Street Shareholders no longer own any any Conversion Shares), each Shareholder will not, and will cause each of Seller (or its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Voting Securities or voting rights or direct or indirect rights transferee) under the Securities Act; and (iii) following the Waiting Period, the Seller (or options its direct or indirect transferee) shall not convert more than that number of Preferred Shares to acquire any Voting Securities Common Shares than an aggregate of Thirty-Seven thousand and Five Hundred Dollars ($37,500), per week, such amount computed based on the five day moving average of the Company or any of its Affiliates other than (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition closing last trade price of shares of Common Stock which as quoted on ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any such national securities exchange if Purchaser’s shares are listed on such an exchange, and Seller shall be prohibited from converting any amount of Consideration Shares in excess of that permitted in this clause (iii). Each direct or indirect transferee of the Preferred Shares shall agree to be subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or 2.2.1(b) and the related provisions of this Agreement pursuant to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder an instrument in form and substance reasonably acceptable to exercise its voting rights Purchaser as a stockholder condition to being the record or beneficial owner of the Company (subject to Section 3.2)such Preferred Shares.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Laidlaw Energy Group, Inc.), Purchase and Sale Agreement (Laidlaw Energy Group, Inc.)
Standstill. (a) Until For the earliest to occur period commencing on the date hereof and ending on the earlier of (Ai) the tenth two year anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 hereof and (ii) such time as the Purchaser beneficially owns less than 10% 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 Actual Voting Power, excluding voting securities beneficially owned Warrant then held by the Shareholders other than Purchaser or any of its Affiliates) (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 earlier of (Ci) termination under Section 2.2 or (such periodii), the "Standstill “Restricted 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 notneither the Purchaser, and will cause each nor any of its Affiliates or any BSL Affiliate (other than Exempt Affiliateseach, a “Restricted Person”) not towill 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:
(ia) other than the acquisition of the Shares by the Purchaser pursuant to this Agreement, the issuance of the Warrant in accordance with the Transaction Documents, the acquisition of the Warrant Shares upon the exercise of the Warrant or the acquisition of any Common Shares issued by the Company pursuant to Section 1.3(c) of the Stock Appreciation Right, acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any Voting Equity Securities or voting rights or direct or indirect rights or options to acquire any Voting Securities securities of any Subsidiary, or of any successor to the Company, or any assets of the Company or of its divisions or of any such successor such that in any event the Purchaser’s beneficial ownership of Common 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 Shares acquired by the Purchaser pursuant to this Agreement and either (A) in the event Company Shareholder Approval is obtained, the Warrant Shares issuable upon the exercise of the Warrant, 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 influence any Person with respect to the voting of any voting securities of the Company or any of its Affiliates other than Subsidiaries;
(Ac) an acquisition as make any public announcement with respect to, or submit a result proposal for, or offer of a stock split(with or without conditions) any tender or exchange offer, stock dividend or similar merger, recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 reorganization or any business combination or other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or officer of extraordinary transaction involving the Company or any of 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 all shareholders of the Company (and any shares issuable upon exercise thereof); provided, however, that if the Shareholders Subsidiaries or any of their securities or assets, on the one hand, and the Purchaser, any of its 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 BSL Affiliate, on 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlother hand;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iiid) form, join or in any way participate in a Group in connection with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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;
(xe) otherwise act, alone or in concert with others (including by providing financing to another party), to seek or offer to control or influence the management, Board of Directors, policies or affairs of the Company;
(f) advise, assist or encourage or finance (or assist or arrange financing to or for) any other Person in connection with any of the foregoing;; or
(xig) publicly request (or otherwise act request in concert with othersa manner that could reasonably be expected to 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 seek the contrary herein but subject to control Section 6.8, during the Restricted Period (i) nothing in Sections 6.6(e) and (f) will prohibit or influence restrict (A) the management, Board performance by any Purchaser Nominee of Directors or policies of the Company or its Affiliates (for this purpose, the any actions of the Shareholder Designees required in their capacity as directors of the Company shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder director of the Company (subject to Section 3.2).
or as Chairman of the Board of Directors, as the case may be) or (bB) Affiliates the exercise of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliates, Purchaser’s rights under Sections 4.1 and 4.2 of this Agreement and (ii) are not Related Transferees in the event that a third party (other than the Purchaser, any of its Affiliates or any Shareholder, (iiiBSL Affiliate) are not in possession makes a proposal to acquire 100% of any material non-public Information provided to Shareholders by the Equity Securities of the Company, its subsidiaries or representatives pursuant to Section 3.4 hereof all or otherwisesubstantially all of the assets of the Company (a “Proposal”), and the Board of Directors resolves not to pursue any discussions, negotiations or the entry into definitive documentation in connection with the Proposal and the Purchaser supports such discussions, negotiations or entry into definitive documentation, the provisions set forth in Section 6.6(d), (ive), (f) do and (g) will 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 apply to the Company that the DLJ Parent Entities are nowProposal, and at any time during the Standstill Period that they take actions that would including as it may be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliatesamended or modified.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Lebow Bennett S), Securities Purchase Agreement (Borders Group Inc)
Standstill. (a) Until Seagate hereby agrees that, until the earliest to occur of (A) the tenth fifth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase AgreementEffective Date, (B) the 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 Seagate will not, and will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectlywithout Newco's prior written consent:
(i) acquire, offer or enter into discussions, negotiations, arrangements or understandings with any third party to acquire, or agree beneficial ownership (as defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of any Newco securities entitled to acquire, by purchase or otherwisevote with respect to the election of any directors of Newco ("VOTING STOCK"), any securities convertible into, exchangeable for or exerciseable for, or that may otherwise become, 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 (A) an acquisition as a result of a stock splitStock, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization right to acquire Voting Stock, if the effect of such acquisition would be that Seagate would then beneficially own and/or have the Company and as reduced right to reflect any such acquisitions pursuant to Section 2.1(a)(i)(Cacquire more than [__] percent (__%) of the Original Agreement) of Common Stock, Voting Stock [THIS WILL BE THE PERCENTAGE OF VOTING STOCK HELD BY SEAGATE AS OF THE EFFECTIVE DATE] (D) 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 shares issuable upon exercise thereof"STANDSTILL PERCENTAGE"), (E) transfers between such Shareholder and Related Transferees as permitted under Section 4.1(f) or (F) any rights which are granted to all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those such terms are defined or used in Regulation 14A under the Exchange Act, as such Regulation is currently in effect) with respect to the Company or its Affiliates, or communicate with, seek to advise, encourage or influence voting of any Person, in any manner, with respect Voting Stock if Newco is at the time of such solicitation publicly-traded and subject to the voting of, securities of the Company or its Affiliates, or become a "participant" in any "election contest" (as those terms are defined or used in Rule 14a-11 proxy rules promulgated 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);; or
(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 partiesiii) otherwise solicit stockholders for the approval of one seek, either alone 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control the Newco Board or influence the management, Board of Directors or policies of Newco. Notwithstanding the Company or foregoing, nothing herein shall limit Seagate's ability to exercise its Affiliates (for this purpose, the actions of the Shareholder Designees in their capacity as directors of the Company shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) rights under Section 5 hereof. For purposes of this Section 2.1 4, any shares of Newco Common Stock or 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 (except including any request which would not require disclosure publicly or options to any third party); provided, that this Section 2.1 shall not restrict or inhibit purchase Newco securities issued to such persons under the rights of a Shareholder to exercise its voting rights as a stockholder terms of the Company (subject to Section 3.2).
(b) Affiliates 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"Plan) shall not be subject to this Section 2.1excluded from the calculation of the number of shares of Voting Stock held by Seagate.
(c) The DLJ Shareholders represent and warrant to the Company that the DLJ Parent Entities are now, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 2 contracts
Sources: Stockholder Agreement (Seagate Technology Inc), Stockholder Agreement (Seagate Technology Inc)
Standstill. During the Standstill Period, so long as the Company has not intentionally and materially breached this Agreement and failed to cure such breach within five business days of written notice from the Sarissa Group specifying any such breach, the Sarissa Group and its Affiliates will not, without the prior written consent of the Company:
(a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) acquire, offer offer, seek or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwiseotherwise (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 terms of, or 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 group required to file on Schedule 13D) or, if the Rights Plan (including any amendments thereto) and any replacement thereof and any other rights plan implemented by the Company, have expired or are otherwise no longer in effect, such higher amount that any other person or group is permitted to buy or own pursuant to the terms of, or 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 amendments thereto) or replacement thereof or other rights plan implemented by the Company or Section 203, as it has granted or hereafter does grant, to any such person or group);
(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the SEC), or seek to advise or influence any person with respect to the voting of, any Voting Securities Stock of the Company (other than in the Sarissa Designee’s capacity as a member of the Board in a manner consistent with the Board’s recommendation in connection with such matter);
(c) separately or voting rights in conjunction with any other person in which it is or direct proposes to be either a principal, partner or indirect rights financing source or options is acting or proposes to acquire act as broker or agent for compensation, submit a proposal for or offer of (with or without conditions) (including to the Board), any Voting Securities Extraordinary Transaction. “Extraordinary Transaction” means any of the following involving the Company or any of its Subsidiaries or its or their securities or a material amount of the assets or businesses of the Company or any of its Affiliates other than (A) an acquisition as a result of a stock splitSubsidiaries: any tender offer or exchange offer, stock dividend or similar merger, acquisition, business combination, reorganization, restructuring, recapitalization, (B) the sale or acquisition of shares of Common Stock which are subject to the Exchange Agreementmaterial assets, liquidation or dissolution (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer of the Companycollectively, 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares issuable upon exercise thereof“Extraordinary Transaction”); provided, however, that if this subparagraph (c) shall not prevent the Shareholders or any of their Affiliates Sarissa Designee acting 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 his capacity as 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities director of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in from raising such matter at the case of securities other than Voting Securities, 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)Board;
(iv) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Sarissa Capital Management LP), Nomination and Standstill Agreement (Ariad Pharmaceuticals Inc)
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant Notwithstanding anything to the Preferred Stock Purchase Agreementcontrary contained herein, (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent Seller hereby acknowledges and agrees that (i) less than 10% 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 Total Voting Power, excluding voting offering of such shares under the Securities Act or in a transaction that is not in violation of applicable securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and Laws; (ii) less than 10% of the Actual Voting Power, excluding voting securities beneficially owned by Preferred Shares shall not be converted to Common Shares prior to the Shareholders other than date (the Apollo/Blackstone Shareholders; provided that the Shareholders at period prior to such time are entitled to designate not more than one director pursuant to Article 3 hereof, and (C) termination under Section 2.2 (such perioddate, the "Standstill Waiting Period") (provided that is the Standstill Period shall end earlier of (x) with respect to the DLJ Shareholders, on six (6) months after the date on which the DLJ Shareholders no longer own any Conversion Shares, of issuance and delivery to Seller of such Preferred Shares or (y) with respect to the Greenwich Street Shareholders, on effective date of a registration statement regarding the date on which offering of such shares by the Greenwich Street Shareholders no longer own any any Conversion Shares), each Shareholder will not, and will cause each of Seller (or its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, any Voting Securities or voting rights or direct or indirect rights transferee) under the Securities Act; and (iii) following the Waiting Period, the Seller (or options its direct or indirect transferee) shall not convert more than that number of Preferred Shares to acquire any Voting Securities Common Shares than an aggregate of Thirty-Seven thousand and Five Hundred Dollars ($37,500), per week, such amount computed based on the five day moving average of the Company or any of its Affiliates other than (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition closing last trade price of shares of Common Stock which as quoted on ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any such national securities exchange if Purchaser's shares are listed on such an exchange, and Seller shall be prohibited from converting any amount of Consideration Shares in excess of that permitted in this clause (iii). Each direct or indirect transferee of the Preferred Shares shall agree to be subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or 2.2.1(b) and the related provisions of this Agreement pursuant to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder an instrument in form and substance reasonably acceptable to exercise its voting rights Purchaser as a stockholder condition to being the record or beneficial owner of the Company (subject to Section 3.2)such Preferred Shares.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Laidlaw Energy Group, Inc.), Purchase and Sale Agreement (Laidlaw Energy Group, Inc.)
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 Unless otherwise permitted by the Shareholders other than the Apollo/Blackstone Shareholders and (ii) less than 10% provisions of the Actual Voting Powerthis Section 6.1, 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 Investor 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 will cause each the Investor shall procure that its Controlled Affiliates shall not, without the prior written approval of its Affiliates (other than Exempt Affiliates) not tothe Board, directly or indirectly:
indirectly (whether acting alone, as a part of a group or otherwise in concert with others): (i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 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 for the purpose described in (i), or (iii) publicly disclose any intention, plan or arrangement with respect to any of the foregoing;
. If, at any time after the date of this Agreement, the Investor and/or its Controlled Affiliates proposes to acquire any additional Voting Securities of the Company 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 (xcalculated on a fully-diluted basis), then prior to completing such proposed transaction, the Investor shall provide a written notice to the Board. If, within ten (10) advisedays after the provision of the aforementioned written notice, assist the Investor shall not have received a written disapproval from the Board, the Investor shall have one hundred and twenty (120) days thereafter to complete such transaction. The Directors, when exercising their discretion in his/her approval or encourage or finance (or assist or arrange financing disapproval of any transaction proposed pursuant to or for) any other Person this Section 6.1, shall comply with their fiduciary duty and act in connection with good faith to the best interest of the Company in making such determination. Notwithstanding the restrictions in this paragraph, the Investor and any of its Affiliates shall not be prohibited from making any confidential proposal to the foregoing;
(xi) otherwise act in concert with others, to seek to control or 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 requesting that the Company shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of waive or amend any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates6.1.
Appears in 2 contracts
Sources: Investor Rights Agreement (LightInTheBox Holding Co., Ltd.), Subscription Agreement (LightInTheBox Holding Co., Ltd.)
Standstill. During the period (asuch period, the “Standstill Term”) Until from and after the earliest to occur date of this Agreement until the later of (A) the tenth fifth (5th) anniversary of the purchase expiration or earlier termination of the Senior Preferred Stock pursuant to “Term” (as such term is defined in the Preferred Stock Purchase Aventis Collaboration Agreement, ) and (B) the date on which fifth (5th) anniversary of the Apollo/Blackstone Shareholders ownexpiration or earlier termination of the “Term” (as such term is defined in the Sanofi License and Collaboration Agreement), neither the Purchaser Parties nor any of their respective Affiliates (collectively, Voting Securities which would represent (ithe “Standstill Parties”) 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 will cause each of its Affiliates (other than Exempt Affiliates) not toshall, directly or indirectlyindirectly (and the Purchaser Parties shall cause their respective Affiliates not to) and will not encourage or assist others to, except as expressly invited in writing by the Company:
(ia) acquiredirectly or indirectly, acquire beneficial ownership of Shares of Then Outstanding Common Stock and/or Common Stock Equivalents, or make a tender, exchange or other offer to acquireacquire Shares of Then Outstanding Common Stock and/or Common Stock Equivalents, if after giving effect to such acquisition, the Standstill Parties would beneficially own more than the Standstill Limit; provided, however, that notwithstanding the provisions of this Section 4.1(a), if the number of shares constituting Shares of Then Outstanding Common Stock is reduced 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 if the aggregate ownership of the Company or any of its Affiliates other than (A) an acquisition Standstill Parties is increased as a result of a repurchase of Shares of Then Outstanding Common Stock, stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer a recapitalization of the Company, acquisitions 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 resulted in the Standstill Parties’ beneficial ownership totaling more than the Standstill Limit;
(b) directly or indirectly, seek to have called any meeting of the stockholders of the Company, propose or nominate for election to the Company’s Board of Directors any person whose nomination has not been approved by a majority of the Apollo/Blackstone Shareholders Company’s Board of up Directors or cause to be voted in favor of such person for election to the Company’s Board of Directors any Shares of Then Outstanding Common Stock;
(c) directly or indirectly, encourage or support a collective aggregate amount of 3,000,000 shares (as such number may be appropriately adjusted to reflect stock splitstender, reverse stock splits, stock dividends exchange or other offer or proposal by any other recapitalization Person or group (an “Offeror”) the consummation of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) which would result in a Change of the Original Agreement) 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 director or 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 all shareholders Control of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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 partyan “Acquisition Proposal”);
(ivd) makedirectly or indirectly, solicit proxies or consents or become a participant in any way cause or participate in, any "solicitation" of "proxies" to vote a solicitation (as those such terms are defined in Regulation 14A under the Exchange Act) in opposition to the recommendation of a majority of the Company’s Board of Directors with respect to the Company or its Affiliatesany matter, or communicate with, seek to advise, encourage 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 manner, 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) act in concert with any Third Party to take any action in clauses (a) through (e) above, or form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” within the meaning of Section 13(d)(3) of the Exchange Act.
(g) enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (e) above;
(h) request or propose in writing 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 4.1; provided, however, that the mere voting in accordance with Section 6 hereof of any voting securities of the Company or its Affiliates, 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 held 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 Purchaser Parties or to any third parties) otherwise solicit stockholders for the approval of one or more stockholder proposals with respect to the Company or its their 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request constitute a waiver violation of any of the provisions of any of paragraphs clauses (ia) through (xiig) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)above.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 2 contracts
Sources: Investor Agreement, Investor Agreement (Regeneron Pharmaceuticals 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) Until the earliest to occur of Olive HoldCo (A1) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each shall procure that its subsidiaries shall not; and (2) shall use commercially reasonable endeavours to procure that no direct or indirect shareholder of Olive HoldCo (including any Olive Holdco Shareholders), no Relative of such a shareholder of Olive HoldCo and no Affiliate of any of the foregoing 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 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 Securities acquired by Red Parent or any of its Affiliates (other than Exempt Affiliates) not tosubsidiaries, directly or indirectlyexceeding 21 per cent. of the fully-diluted share capital of the Company, unless:
(i) acquiresuch acquisition is made, 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate in a Group with respect thereto with the prior approval of the Board, including, if ▇▇▇▇▇ ▇▇▇▇▇▇’s Equity Proportion is at least 15 per cent., by at least one ▇▇▇▇▇ ▇▇▇▇▇▇ Nominated Director and, in any event, a simple majority of all INEDs present and eligible to vote on the entire Board decision; or
(ii) such acquisition is made (and is no greater than is required) in order to allow Red Parent to continue to “equity account” for Red’s holding of Directors Shares and Red’s Parent has first delivered to the Company a written opinion of its auditors or other firm of chartered accountants of international repute appointed by Red Parent (which approval as applicable) confirming that such acquisition is requested the minimum acquisition necessary in order to allow Red Parent to continue to “equity account” for Red’s holding of Shares; or
(iii) 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 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 manner which does not require disclosure publicly Share by either of them or to any third party);Person Acting in Concert with either of them) is such that they have an aggregate interest in more than 50 per cent. of the voting rights of the Company; or
(iv) makewithin 30 days of such acquisition, Red Parent or any of its subsidiaries disposes of Securities such that Red’s interest in Securities, when aggregated with any way cause or participate inSecurities acquired by any of Red Parent’s subsidiaries, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 no longer exceeds 21 per cent of the Company or its Affiliates, 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 fully diluted share capital of the election Company.
12.2 For the purposes of Shareholder Designeesclause 12.1, Management Directors and Unaffiliated Directors nominated by the Board of Directors a person shall be treated as having an “interest” 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)Securities or Shares only if:
(a) he owns them;
(vb) initiate, propose or, except with he has the prior approval of a majority right (whether conditional or absolute) to exercise or direct the exercise of the entire Board voting rights attaching to them or has general control 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))them;
(vic) 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 by virtue of any Shareholder);
agreement to purchase, option or derivative he: (viii) offer, sell has the right or transfer any Voting Securities option to acquire them or rights to receive Voting Securities except call for Dispositions in accordance with Article 4;
their delivery; or (viiiii) 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 is under an obligation to take any actiondelivery of them, inconsistent with whether the foregoing;
(ix) enter into any negotiationsright, arrangements option or understandings with any third party with respect to any of obligation is conditional or absolute and whether it is in the foregoing;
(x) advise, assist money 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi))otherwise; or
(xiid) request a waiver of he is party to any of the provisions of any of paragraphs derivative: (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or whose value is determined by reference to any third party)their price; provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.and
Appears in 2 contracts
Standstill. (a) Until Buyer agrees that from the earliest to occur date hereof until the earlier of (Ai) the tenth date of a Change of Control, (ii) the seventh anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase AgreementClosing Date, (Biii) the date on upon which the Apollo/Blackstone Shareholders ownLevel 3 Holders sell to one Person, collectivelyin one transaction or a series of related transactions, Voting Securities which would represent (i) less than 10or Convertible Voting Securities representing 5% or more of the Total Voting PowerPower (assuming the conversion, excluding voting securities 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 owned 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 Shareholders other than the Apollo/Blackstone Shareholders members of any Group of which such Person is a member) and (iiiv) less than 10% the occurrence 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 a Section 6.04(e) Event (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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with without the prior written consent of the chairman Board of Directors, specifically expressed in a resolution adopted by a majority of the Board of Directors and the chief executive officer directors of the CompanyCorporation who are not Buyer Directors, acquisitions the Buyer will not and will not permit its Affiliates to:
(i) purchase or otherwise acquire, directly or indirectly, or agree or offer to purchase or otherwise acquire (except, in any case, (A) pursuant to the terms of this Agreement or the Certificate of Designations or (B) by way of a stock dividend, stock split, reclassification, recapitalization or other similar event 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or officer of the Company or its subsidiaries (and any shares issuable upon exercise thereofCorporation), (E) transfers between such Shareholder and Related Transferees as permitted under Section 4.1(f) or (F) any rights which are granted to all shareholders of the Company (and any shares issuable upon exercise thereof)Restricted Securities; provided, however, provided that if the Shareholders 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 any pursuant to one or more private transactions, the number of their Affiliates in good faith inadvertently acquire not more than 500,000 shares of Common Stock in violation such class 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 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 Restricted Securities as it would have been violated; and provided, further, that no violation entitled to purchase if it had been entitled to purchase its pro-rata share of this provision shall be deemed to have occurred by reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlsuch issuance under Section 5.07;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any solicit"solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, or become a "participant" ", directly or indirectly, in any "election contestsolicitation" of proxies (as those such 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 from any holder 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) offer, sell or transfer any Voting Securities or rights to receive Convertible Voting Securities except for Dispositions in accordance with Article 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 in concert vote or other action on any matter or agree or announce its intention to vote with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.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) Until the earliest acquire or offer to occur acquire any Company Securities other than shares of Class A Common Stock and Class 1 Common Stock acquired pursuant to (A1) the tenth anniversary Reclassification, (2) conversions of the purchase existing shares of the Senior Preferred Class 1 Common Stock into shares of Class A Common Stock pursuant to the Preferred Stock Purchase Agreementprovisions of the Amended and Restated Charter, (B3) the 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 annual compensation grants or 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 equity compensation to 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition Stockholders as a result of their status as a stock split, stock dividend or similar recapitalizationmember of the Board, (B4) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer of the Company, acquisitions any Transfers permitted 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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(fSections 5.8(B)(ii)(a)(1) or (F5) any rights which are granted to all shareholders of the Company (and any shares 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 as permitted 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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 party5.8(A)(ii);
(ivb) (i) make, or in any way cause or participate in, directly or indirectly, any "“solicitation" of "proxies" to vote ” (as those terms are such term is defined in Regulation 14A Rule 14a-1 under the Exchange Act, including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act) with respect to the vote or refrain from voting any Company Securities, (ii) call or its Affiliates, or communicate with, seek to advise, encourage call a meeting of stockholders or (iii) seek to advise or influence any Person, in any manner, person with respect to the voting of, securities of the Company or its Affiliates, 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)Company Securities;
(vc) initiate, propose or, except other than (x) to effectuate the nomination and election of the Sands Family Nominees in Section 5.8(A) or (y) such actions that are consistent with the prior approval of a majority of the entire Board of Directors (which approval is requested in a manner which does not require disclosure publicly Board’s public recommendation on any director nomination 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 proposal, seek the removal of any member of the Board of Directors of the Company (including through any “withhold” or its Affiliates (for this purposesimilar campaign) or submit, the actions of the Shareholder Designees initiate, participate in communicating (without public disclosure or disclosure knowingly encourage any director nomination or stockholder proposal with respect 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));
(vid) propose any merger, share exchange, business combination, tender or exchange offer, restructuring, recapitalization, liquidation or similar transaction of or involving, or any sale or other disposition or acquisition of a material portion of the consolidated assets of, the Company;
(e) act, alone or in concert with others, to seek to change, control or influence, in any manner, agreethe business, attempt, seek policies 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 affairs of the Company or and 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)Subsidiaries;
(viih) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 4;
(viii) publicly 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) adviseperson(s), assist or encourage or finance (or assist or arrange financing to or for) any other Person in connection which are inconsistent with any of the foregoing;
(xii) advise, knowingly assist, knowingly encourage or direct any person to do any of the foregoing; or
(k) 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 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 act calls into disrepute the Company in concert with othersany manner that could reasonably be expected to damage the business or reputation of the Company; and
(b) the Company shall not, to seek to control or influence and shall cause its Subsidiaries and Representatives (acting at the management, Board of Directors or policies direction of the Company or its Affiliates (for this purposeSubsidiaries) not to, make any public statement that disparages or otherwise calls into disrepute the actions Stockholders and the Family-Related Persons in any manner that could reasonably be expected to damage the business or reputation of the Shareholder Designees in their capacity as directors of the Company such persons. The Family-Related Persons shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) third-party beneficiaries of this Section 2.1 5.8(C)(iv)(b). The restrictions in this Section 5.8(C) shall not (except a) apply (1) in any request which would not require disclosure publicly compelled testimony or production of information in response to applicable law, or (2) to any third party)disclosure required by applicable law; provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates prohibit any party from reporting what it reasonably believes to be violations of Shareholders who (i) are not Apollo/Blackstone Shareholders federal law or their Affiliates, (ii) are not Related Transferees of regulation to any Shareholder, (iii) are not in possession of any material non-public Information provided to Shareholders by the Company, its subsidiaries or representatives governmental authority pursuant to Section 3.4 hereof 21F of the Exchange Act 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 2.1Rule 21F promulgated thereunder.
(c) The DLJ Shareholders represent and warrant to the Company that the DLJ Parent Entities are now, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 2 contracts
Sources: Reclassification Agreement (Sands Richard Et Al), Reclassification Agreement (Constellation Brands, Inc.)
Standstill. (a) Until Mutual hereby covenants and agrees that, on or before the earliest to occur of (A) the tenth fifth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 it will not, and will cause each Mutual Affiliates to not, without the prior written consent of its Affiliates (other than Exempt Affiliates) not toa majority of the members of the Company's Board of Directors, directly or indirectlydo any of the following except pursuant to Section 2 hereof:
(ia) acquire, offer or agree to acquire any shares of Common Stock (or options or warrants to acquire, or agree to acquiresecurities convertible into or exchangeable for, by purchase or otherwiseshares of Common Stock) if, 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 (A) an acquisition as a result of such acquisition, Mutual (together with any Mutual Affiliates) would Beneficially Own more than a stock split, stock dividend or similar recapitalization, (B) the acquisition number of shares of Common Stock which are subject in excess of a number equal to the Exchange Agreement, forty percent (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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C40%) of the Original Agreementoutstanding shares of Common Stock plus forty percent (40%) of the shares 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 director or officer Stock issuable upon conversion of the Company or its subsidiaries Convertible Notes plus forty percent (and any 40%) of the number of shares of Common Stock 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 all shareholders conversation of the Company (and any shares issuable upon exercise thereof)Preferred Stock; provided, however, that, for purposes of computing such amount, the 29,800 shares of Common Stock Beneficially Owned by Invista Capital Management, Inc. ("Invista") on November 3, 1997 shall be excluded from such calculation for as long as such shares are regarded as Beneficially Owned by Invista (and no longer) and provided that if the Shareholders no executive officer or director of Mutual or Principal or any employee of Mutual, Principal, or any of their Affiliates affiliates other than officers, directors or employees of Invista charged with the responsibility thereof shall participate in good faith inadvertently acquire 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 more than 500,000 vote or act on written consent in any matter coming before shareholders at any shareholder meeting or shareholder action in excess of forty percent (40%) of the shares of Common Stock outstanding plus forty percent (40%) of the shares of Preferred Stock outstanding;
(b) directly or indirectly commence or participate in violation a solicitation of these provisions and within 15 days after proxies either to oppose the first date on election of any Person to the Board of Directors or to seek the removal of any Person from the Board of Directors, which the Shareholders have actual knowledge (including by way of written notice given Person has been nominated by the CompanyNominating Committee of the Board of Directors;
(c) that 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 violation has occurred Shareholders tender or any of their Affiliates shall have transferred exchange offer to purchase any shares of Common Stock held in violation of these provisions to unrelated third parties so that the Shareholders and their Affiliates no longer beneficially own or make 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) makepublic announcement concerning, or in submit any way cause or participate in, any "solicitation" of "proxies" written proposal to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 for a merger, share exchange, acquisition of this Agreement) or its Affiliates or seek the removal of any member substantially all of the Board of Directors of the Company assets 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 similar transaction involving 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Standstill. (a) Until The Executive covenants and agrees that during the earliest to occur of (A) Term and thereafter through the tenth second anniversary of the purchase his Date of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 Termination (such period, the "“Standstill Period") (provided ”), 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 shall end (x) with respect to Period, without the DLJ Shareholdersprior written consent of the Company, on the date on which the DLJ Shareholders no longer own Executive covenants and agrees that he will not at 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 will cause each of its Affiliates (other than Exempt Affiliates) not totime, directly or indirectly:
(i) acquireenter into, offer agree to acquireenter into, commence or submit any merger, consolidation, tender offer, exchange offer, business combination, share exchange, recapitalization, restructuring or other extraordinary transaction involving any of the Ashford-Related Entities, or agree to acquireany subsidiary or division thereof, 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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) respective securities or assets or take any action that a violation has occurred Shareholders or would reasonably be expected to require any of their Affiliates shall have transferred any shares the Ashford-Related Entities to make a public announcement regarding the possibility of Common Stock 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controltransaction;
(ii) make tender any equity securities of the Ashford-Related Entities into a tender or cause 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 (and in the case of such a withdrawal or change of recommendation, it shall not be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4breach of this clause (ii) if the tendered or exchanged securities are withdrawn prior to the expiration of such tender or exchange offer);
(iii) (x) make, or in any way participate in, any “solicitation” of “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 securities of any of the Ashford-Related Entities under any circumstances, or deposit any securities of any of the Ashford-Related Entities in a voting trust or subject them to a voting agreement, pooling agreement or other agreement of similar effect, (y) seek to advise or influence any person with respect to the voting of any securities of any of the Ashford-Related Entities (other than to vote as recommended by Board of Directors of any of the Ashford-Related Entities), or (z) grant any proxy with respect to any equity interests of any of the Ashford-Related Entities (other than to the applicable Ashford-Related Entity or a person specified by such Ashford-Related Entity in a proxy card provided to stockholders of such Ashford-Related Entity);
(iv) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote “group” (as those terms are defined in Regulation 14A under that term is used for purposes of Rule 13d-5 or Section 13(d)(3) of the Exchange Act) 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, equity securities of the Company or its Affiliates, 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)Ashford-Related Entities;
(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 form or 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 4;
(viii) disclose any intention, plan or arrangementarrangement to change any of the members 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) call, request the calling of, or otherwise seek or submit a written request for the calling of a special meeting of, or initiate any stockholder proposal for the election of any director or any other action by, the stockholders of any of the Ashford-Related Entities;
(vii) make any a public announcement (in connection with seeking to influence 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)control the management of the Board of Directors, or induce the policies, affairs or strategy of any other Person to take of the Ashford-Related Entities;
(viii) form or disclose any actionintention, plan or arrangement 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 encourage, or finance (or assist or arrange financing to or for) enter into any arrangements with, any other Person persons in connection with any of the foregoing;
(xi) otherwise act matters set forth in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)Section 10(c); or
(xiix) publicly request a waiver of the Company to amend or waive any of the provisions of any of paragraphs (i) through (xii) provision of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.210(c).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Employment Agreement (Ashford Inc.)
Standstill. (a) Until Except as provided in Section 4.1(b), from the earliest to occur of Closing until three months after no DSM Nominee serves on the Board (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 DSM shall not, and will cause each nor shall it permit DSM Parent or any of its other Subsidiaries or controlled Affiliates (other than Exempt Affiliates) not to, directly or indirectly:, without the prior consent of the Company (acting through a resolution of the Company’s Non-DSM Directors):
(i) acquire, offer to acquire, acquire or agree to acquire, whether by purchase 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, any (A) Beneficial Ownership of additional Voting Securities or voting rights 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 all of then-outstanding Warrants for the maximum number of shares of Common Stock issuable thereunder, regardless of whether such Warrants are then exercisable, and (2) the conversion of the Shares for the maximum number of shares of Common Stock issuable thereunder, regardless of whether such Shares are then convertible, which number of shares shall be 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 Agreement, pursuant to the exercise of the Warrants, 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 rights ownership interest in any indebtedness or options to acquire any Voting Securities debt securities of the Company or any of its Affiliates other than (A) an acquisition as a result of a stock splitSubsidiaries, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions except pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 4.2 of this provision shall be deemed to have occurred by reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlAgreement;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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);
(ivA) make, or in any way cause participate, directly or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) with respect to the Company or its Affiliates, or communicate with, seek to advise, encourage or influence any Personindirectly, in any manner“solicitation” of “proxies” (as such terms are used in the rules of the SEC) to vote Voting Securities, (B) seek to advise or knowingly influence any Person with respect to the voting of, securities of the Company any Voting Securities or its Affiliates, or become a "participant" (C) deposit any Voting Securities in any "election contest" voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities, except for this Agreement;
(as those terms are defined iii) make any public announcement of a proposal or used in Rule 14a-11 under the Exchange Actoffer (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 its Affiliates business combination;
(other than non-public communications with other Shareholders iv) effect or Affiliates of seek to effect any Shareholder which would not require public disclosure by any Person recapitalization, reclassification, liquidation or solicitation of proxies in support dissolution 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)Company;
(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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 4;
(viii) disclose any intention, plan or arrangement, or make arrangement by DSM regarding the possibility of any public announcement of the events described in clauses (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 foregoingi) through (iv) above;
(ixvi) knowingly take any action that would 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 events described in clauses (i) through (iv) above; or
(vii) enter into any discussions, negotiations, arrangements agreements or understandings with any other third party Person (excluding DSM’s advisors) 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates Notwithstanding the foregoing, the restrictions contained in Section 4.1(a) shall not (1) apply with respect to the designations of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliatesthe DSM Nominees in accordance with this Agreement, (ii2) are not Related Transferees prevent a DSM Director from taking any action in his or her capacity as a director of any Shareholder, (iii) are not in possession of any material non-public Information provided to Shareholders by the Company, (3) prohibit DSM Parent or any of its subsidiaries Subsidiaries or representatives pursuant controlled Affiliates from voting its Voting Securities in its discretion, (4) apply to the acquisition of securities in or control of another Person (including by way of merger or consolidation) or (5) apply to any 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 3.4 hereof or otherwise, and (iv) do not have voting or dispositive power over any Conversion Shares (such affiliates being "Exempt Affiliates"4.1(a) shall not prevent a private communication to the Board to the extent that such private communication would not reasonably be subject expected to this Section 2.1.
(c) The DLJ Shareholders represent and warrant require a public disclosure prior to any public announcement by the Company that the DLJ Parent Entities are now, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(ait (or its Board) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities has approved or entered into an agreement with respect to be Exempt Affiliatesa Change of Control Transaction or Fundamental Transaction.
Appears in 1 contract
Sources: Stockholder Agreement (Amyris, Inc.)
Standstill. (a) Until Except as provided in Section 4.1(b), from the earliest to occur of Closing until three months after no DSM Nominee serves on the Board (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 DSM shall not, and will cause each nor shall it permit DSM Parent or any of its other Subsidiaries or controlled Affiliates (other than Exempt Affiliates) not to, directly or indirectly:, without the prior consent of the Company (acting through a resolution of the Company’s Non-DSM Directors):
(i) acquire, offer to acquire, acquire or agree to acquire, whether by purchase 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, any (A) Beneficial Ownership of additional Voting Securities or voting rights 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 all of then-outstanding Warrants for the maximum number of shares of Common Stock issuable thereunder, regardless of whether such Warrants are then exercisable, (2) the conversion of the Shares for the maximum number of shares of Common Stock 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 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 Agreement, pursuant to the exercise of the Warrants 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 rights ownership interest in any indebtedness or options to acquire any Voting Securities debt securities of the Company or any of its Affiliates other than (A) an acquisition as a result of a stock splitSubsidiaries, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions except pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 4.2 of this provision shall be deemed to have occurred by reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlAgreement;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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);
(ivA) make, or in any way cause participate, directly or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) with respect to the Company or its Affiliates, or communicate with, seek to advise, encourage or influence any Personindirectly, in any manner“solicitation” of “proxies” (as such terms are used in the rules of the SEC) to vote Voting Securities, (B) seek to advise or knowingly influence any Person with respect to the voting of, securities of the Company any Voting Securities or its Affiliates, or become a "participant" (C) deposit any Voting Securities in any "election contest" voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities, except for this Agreement;
(as those terms are defined iii) make any public announcement of a proposal or used in Rule 14a-11 under the Exchange Actoffer (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 its Affiliates business combination;
(other than non-public communications with other Shareholders iv) effect or Affiliates of seek to effect any Shareholder which would not require public disclosure by any Person recapitalization, reclassification, liquidation or solicitation of proxies in support dissolution 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)Company;
(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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 4;
(viii) disclose any intention, plan or arrangement, or make arrangement by DSM regarding the possibility of any public announcement of the events described in clauses (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 foregoingi) through (iv) above;
(ixvi) knowingly take any action that would 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 events described in clauses (i) through (iv) above; or
(vii) enter into any discussions, negotiations, arrangements agreements or understandings with any other third party Person (excluding DSM’s advisors) 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates Notwithstanding the foregoing, the restrictions contained in Section 4.1(a) shall not (1) apply with respect to the designation of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliatesthe DSM Nominees in accordance with this Agreement, (ii2) are not Related Transferees prevent a DSM Director from taking any action in his or her capacity as a director of any Shareholder, (iii) are not in possession of any material non-public Information provided to Shareholders by the Company, (3) prohibit DSM Parent or any of its subsidiaries Subsidiaries or representatives pursuant controlled Affiliates from voting its Voting Securities in its discretion, (4) apply to the acquisition of securities in or control of another Person (including by way of merger or consolidation) or (5) apply to any 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 3.4 hereof or otherwise, and (iv) do not have voting or dispositive power over any Conversion Shares (such affiliates being "Exempt Affiliates"4.1(a) shall not prevent a private communication to the Board to the extent that such private communication would not reasonably be subject expected to this Section 2.1.
(c) The DLJ Shareholders represent and warrant require a public disclosure prior to any public announcement by the Company that the DLJ Parent Entities are now, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(ait (or its Board) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities has approved or entered into an agreement with respect to be Exempt Affiliatesa Change of Control Transaction or Fundamental Transaction.
Appears in 1 contract
Sources: Stockholder Agreement (Amyris, Inc.)
Standstill. (a) Until Mutual hereby covenants and agrees that, on or before the earliest to occur of (A) the tenth fifth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 it will not, and will cause each Mutual Affiliates to not, without the prior written consent of its Affiliates a majority of the members of the Company's Board of Directors, do any of the following except pursuant to Section 2 hereof: (other than Exempt Affiliates) not to, directly or indirectly:
(ia) acquire, offer or agree to acquire any shares of Common Stock (or options or warrants to acquire, or agree to acquiresecurities convertible into or exchangeable for, by purchase or otherwiseshares of Common Stock) if, 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 (A) an acquisition as a result of such acquisition, Mutual (together with any Mutual Affiliates) would Beneficially Own more than a stock split, stock dividend or similar recapitalization, (B) the acquisition number of shares of Common Stock which are subject in excess of a number equal to the Exchange Agreement, forty percent (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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C40%) of the Original Agreementoutstanding shares of Common Stock plus forty percent (40%) of the shares 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 director or officer Stock issuable upon conversion of the Company or its subsidiaries Convertible Notes plus forty percent (and any 40%) of the number of shares of Common Stock 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 all shareholders conversation of the Company (and any shares issuable upon exercise thereof)Preferred Stock; provided, however, that, for purposes of computing such amount, the 37,900 shares of Common Stock Beneficially Owned by Invista Capital Management, Inc. ("Invista") on December , 1997 shall be excluded from such calculation for as long as such shares are regarded as Beneficially Owned by Invista (and no longer) and provided that if the Shareholders no executive officer or director of Mutual or Principal or any employee of Mutual, Principal, or any of their Affiliates affiliates other than officers, directors or employees of Invista charged with the responsibility thereof shall participate in good faith inadvertently acquire 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 more than 500,000 vote or act on written consent in any matter coming before shareholders at any shareholder meeting or shareholder action in excess of forty percent (40%) of the shares of Common Stock outstanding plus forty percent (40%) of the shares of Preferred Stock outstanding; (b) directly or indirectly commence or participate in violation a solicitation of these provisions and within 15 days after proxies either to oppose the first date on election of any Person to the Board of Directors or to seek the removal of any Person from the Board of Directors, which the Shareholders have actual knowledge (including by way of written notice given Person has been nominated by the CompanyNominating Committee of the Board of Directors; (c) that 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 violation has occurred Shareholders tender or any of their Affiliates shall have transferred exchange offer to purchase any shares of Common Stock held in violation of these provisions to unrelated third parties so that the Shareholders and their Affiliates no longer beneficially own or make 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) makepublic announcement concerning, or in submit any way cause or participate in, any "solicitation" of "proxies" written proposal to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 for a merger, share exchange, acquisition of this Agreement) or its Affiliates or seek the removal of any member substantially all of the Board of Directors of the Company assets 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 similar transaction involving 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Standstill. Except as otherwise expressly provided in this Agreement (a) Until the earliest to occur of (A) the tenth anniversary including this Section 3.1 and Section 3.2 hereto), none of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 Shareholder 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 any Conversion Shares), each Shareholder will not, and will cause each of its Affiliates (other than Exempt Affiliates) not toshall, 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:
(ia) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, Beneficially Own, acquire, agree or offer to acquire any Voting Securities or voting rights or direct or indirect rights or options to Beneficially Own Voting Securities, including any voting trust certificates representing such securities (in each case, other than (i) the Shares, (ii) rights, options or warrants distributed on a pro rata basis to all holders of the class or classes of securities of the Company pursuant to distribution that has been approved by at least a majority of the Independent Directors constituting the entire Independent Committee, (iii) securities acquired from the Company pursuant to a rights offer, exchange offer or similar transaction made by the Company which has been approved by at least a majority of the Independent Directors constituting the entire Independent Committee; (iv) grants of restricted Voting Securities or options to purchase Voting Securities (and the exercise thereof) to an executive officer of the Company who may be deemed to be an Affiliate of the Shareholder or JFLEI under this Agreement, which grants have been approved by at least a majority of the Independent Directors constituting the entire Independent Committee; and (v) grants of restricted CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 31 of 39 Voting Securities or options to purchase Voting Securities (and the exercise thereof) to a nonemployee director of the Company who may be deemed to be an Affiliate of the Shareholder or JFLEI under this Agreement pursuant to an equity compensation plan generally available to all nonemployee directors of the Company, which grants have been approved by at least a majority of the Independent Directors constituting the entire Independent Committee);
(b) enter, propose to enter into, or solicit any merger or business combination, tender offer, exchange offer or similar transaction involving the Company, or purchase, acquire, propose to purchase or acquire or solicit the purchase or acquisition of any portion of the business or assets of the Company if, in each case, (i) in such transaction, all holders of Voting Securities of the Company are not treated equally in terms of the dollar value at closing of the consideration, if any, to be received by such holders or any of its Affiliates other than (Aii) an acquisition as a result such transaction is entered into with Affiliates, members of a stock splitGroup that includes the Shareholder, stock dividend JFLEI or similar recapitalization, (B) the acquisition of shares of Common Stock which their Affiliates or other Persons that are subject to the Exchange Agreement, (C) acting in concert with the prior written consent of the chairman of the Board of Directors and the chief executive officer of the CompanyShareholder, 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 JFLEI or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 to circumvent 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlforegoing provisions;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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);
(ivc) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, or become a "participant" in any "election contest" (as those such terms are defined or used in Rule 14a-11 the proxy rules promulgated by the Commission 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi))Independent Committee; or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
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) Until (iii) below), agrees that it and its respective Affiliates shall not, without the earliest to occur of (A) the tenth anniversary prior written consent of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase AgreementBoard, (B) the 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 consent may be withheld in its sole 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 will cause each of its Affiliates (other than Exempt Affiliates) not toabsolute discretion, directly or indirectly, alone or in concert with any other Person:
(i) acquire, offer to acquire, acquire or agree to acquire, directly or indirectly, by purchase or otherwise, Beneficial Ownership of any Voting Spectranetics Securities (or voting rights or any direct or indirect rights rights, options or options to acquire warrants for any Voting 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 Company or any date hereof as referenced in Section 12(c) of its Affiliates other than (A) an acquisition as a result of a this Settlement Agreement, provided, however, that McKinley may acquire additional common stock split, stock dividend or similar recapitalization, (B) on the acquisition of open market to t▇▇ ▇▇▇▇▇t that his total Beneficial Ownership does not exceed 300,000 shares of Common Stock which are subject Stock; (ii) encourage any Person to acquire, or (iii) advise any Person with respect to the Exchange Agreementacquisition or proposed acquisition of, (C) with the prior written consent Spectranetics Securities other than attempts to dispose of such aforementioned Spectranetics Securities that such Person Beneficially Owns as 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares issuable upon exercise thereof)date hereof; 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 longer beneficially own any such shares or have any agreement or understanding relating to such shares, this Section 2.1 (a) shall be deemed not apply to not have been violated; and provided, further, that no violation of this provision shall be deemed to have occurred by reason of the indirect acquisition of beneficial ownership of securities acquisitions resulting from (x) investments in investment funds as to which no Shareholder the exercise of the vested options held by Largey, Samek or Affiliate thereof has control or power to control with respect to voting or investment decisions Sweet; or (y) acquisitions of securities 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder Spectranetics or its Affiliates has control direct or power indirect subsidiaries to controlall holders of Spectranetics Securities (or any class(es) thereof) or from exercise of any rights so distributed;
(iib) make or cause solicit, encourage any other Person to be made solicit, advise any proposal for a Reorganization Transaction except for Dispositions in accordance Person with Article 4;
(iii) formrespect to the Solicitation of, join or in any other way participate in a Group in, endorse or facilitate any Solicitation of, Proxies or consents with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Spectranetics Securities, Shareholders may participate in or become 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) makeParticipant, or otherwise engage in any way cause Solicitation of Proxies or participate in, any "solicitation" of "proxies" to vote consents (as those terms are defined in Regulation 14A under the Exchange ActA) with respect to any matter submitted or to be submitted to the Company vote of the holders of any Spectranetics Securities at any annual or its Affiliatesspecial meeting or by written consent, or communicate withincluding, seek to advise, encourage or influence any Person, in any mannerwithout limitation, with respect to the election of Directors of Spectranetics in opposition to the nominees recommended by the Board or otherwise for the purpose of influencing or acquiring control of the management of Spectranetics, or (B) for the purpose of calling a special meeting of Spectranetics' stockholders or the holders of any Spectranetics Securities;
c) advise or seek to advise any Person with respect to the voting of any Spectranetics Securities;
d) submit, encourage any other Person to submit, advise or assist any Person with respect to the submission of, securities of the Company or its Affiliatesotherwise participate in, or become a "participant" endorse, or facilitate any nominations or proposals to Spectranetics or to the holders of Spectranetics Securities for consideration by the holders of any Spectranetics Securities at any annual or special meeting of such holders or in any "election contest" (as those terms are defined action to be taken by written consent pursuant to Spectranetics' charter or used in bylaws, Rule 14a-11 14a-3 under the Exchange Act) with respect to , the Company or its Affiliates (other than non-public communications with other Shareholders or Affiliates provisions of any Shareholder which would not require public disclosure by document governing the terms of any Person such Spectranetics Securities or solicitation of proxies in support governing the rights of the election of Shareholder Designeesholders thereof, 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)or otherwise;
(ve) initiate, propose or, except with the prior approval of otherwise take any action to request a majority special meeting of the entire Board holders of Directors (which approval is requested any Spectranetics Securities;
f) request, or take any action to obtain or retain, any list of holders of Common Stock;
g) deposit any Spectranetics Securities in a manner which does not require disclosure publicly voting trust or subject them to any third parties) a voting agreement or other agreement or arrangement of similar effect or otherwise solicit stockholders for the approval of one join or more stockholder proposals with respect to the Company form a partnership, limited partnership, limited liability company, syndicate 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 Group (except insofar as a representative on the Board of Directors Group consisting solely of the Company (except pursuant to Section 3.1 of this Agreement) or its Affiliates or seek the removal of any member members 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, Sweet 13D Group shall not be deemed to be in contravention exist at the Execution Date) for the purpose of acquiring, holding, voting or disposing of any Spectranetics Securities, or for the purpose of circumventing or avoiding any of the provisions of this paragraph (v));
(vi) in Settlement Agreement, encourage, advise or assist 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 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); or arrange, or in any way participate, directly or indirectly, in any financing for any such transaction or for the purchase by any person of any Spectranetics Securities or any assets of Spectranetics;
i) otherwise act (x) to seek representation on the Board, (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 could require the Company to make any public disclosure relating to any such intent, purpose, plan or proposal; or
k) assist, advise, encourage, facilitate or enter into any agreement or arrangement to assist or encourage or finance (or assist or arrange financing to or for) advise, any other Person in connection with taking any action referenced in any of the foregoing;
(xi) otherwise act in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (iSections 9(a) through (xiij) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)above.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with Without the prior written consent of the chairman 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) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any share or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors and or a majority of the chief executive officer members of a committee of non-employee directors established for such purpose for services rendered to the Company, acquisitions by (b) securities upon the Apollo/Blackstone Shareholders exercise or exchange of up or conversion of securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to a collective aggregate amount increase the number of 3,000,000 shares such securities or to decrease the exercise price, exchange price or conversion price of such securities (as other than in connection with stock splits or combinations) or to extend the term of such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stocksecurities, (Dc) 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 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company issued pursuant to the Purchase Agreements and (d) securities issued pursuant to acquisitions or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate in a Group with respect thereto with the prior approval of strategic transactions approved by 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and non-public communication by a Shareholder with other Shareholders carry no registration rights that require or Affiliates permit the filing of any Shareholder which would not require public disclosure by registration statement in connection therewith during the prohibition period in Section 14 herein and provided that any Person, such issuance shall not only be deemed to be in contravention of this paragraph a Person (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 partythe equityholders of a Person) to deposit any securities which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 and shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 provide to the Company that additional benefits in addition to the DLJ Parent Entities are nowinvestment of funds, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties but shall not include a transaction in this Section 2.1(c), which the Company will consider is issuing securities primarily for the DLJ Parent Entities purpose of raising capital or to be Exempt Affiliatesan entity whose primary business is investing in securities.
Appears in 1 contract
Sources: Placement Agency Agreement (Cognition Therapeutics Inc)
Standstill. (a) Until The Executive covenants and agrees that during the earliest to occur of (A) Term and thereafter through the tenth second anniversary of the purchase his Date of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 Termination (such period, the "“Standstill Period") (provided ”), 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 shall end (x) with respect to Period, without the DLJ Shareholdersprior written consent of the Company, on the date on which the DLJ Shareholders no longer own Executive covenants and agrees that he will not at 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 will cause each of its Affiliates (other than Exempt Affiliates) not totime, directly or indirectly:
(i) acquireenter into, offer agree to acquireenter into, commence or submit any merger, consolidation, tender offer, exchange offer, business combination, share exchange, recapitalization, restructuring or other extraordinary transaction involving any of the Ashford-Related Entities, or agree to acquireany subsidiary or division thereof, 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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) respective securities or assets or take any action that a violation has occurred Shareholders or would reasonably be expected to require any of their Affiliates shall have transferred any shares the Ashford-Related Entities to make a public announcement regarding the possibility of Common Stock 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controltransaction;
(ii) make or cause to be made tender any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any equity securities of the Company Ashford-Related Entities into a tender or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 exchange offer commenced 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 other than a majority of the entire Board of Directors (which approval is requested in a manner which does not require disclosure publicly tender 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 exchange offer that 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 one of the Board 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 (and in the case of Directors such a withdrawal or change of the Company or its Affiliates (for this purposerecommendation, 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, it shall not be deemed to be in contravention a breach 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliates, clause (ii) if the tendered or exchanged securities 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 withdrawn prior to the Company that the DLJ Parent Entities are now, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(cexpiration of such tender or exchange offer), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.;
Appears in 1 contract
Sources: Employment Agreement (Braemar Hotels & Resorts Inc.)
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with Without the prior written consent of Placement Agent, from the chairman 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 Shares or Common Share Equivalents, other than an Exempt Issuance or (ii) file any registration statement or any amendment or supplement thereto, other than pursuant to the Registration Rights Agreement. For purposes of this Agreement, “Exempt Issuance” means the issuance of (a) Common Shares or options to employees, officers or directors of the Company pursuant to any share or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors and or a majority of the chief executive officer members of a committee of non-employee directors established for such purpose for services rendered to the Company, acquisitions by (b) securities upon the Apollo/Blackstone Shareholders exercise or exchange of up or conversion of securities exercisable or exchangeable for or convertible into Common Shares issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to a collective aggregate amount increase the number of 3,000,000 shares such securities or to decrease the exercise price, exchange price or conversion price of such securities (as other than in connection with stock splits or combinations) or to extend the term of such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stocksecurities, (Dc) 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 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company issued pursuant to the Purchase Agreements, (d) warrants to be issued to Meteora Capital, LLC and (e) securities issued pursuant to acquisitions or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate in a Group with respect thereto with the prior approval of strategic transactions approved by 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and non-public communication by a Shareholder with other Shareholders carry no registration rights that require or Affiliates permit the filing of any Shareholder which would not require public disclosure by registration statement in connection therewith during the prohibition period in Section 14 herein and provided that any Person, such issuance shall not only be deemed to be in contravention of this paragraph a Person (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 partythe equityholders of a Person) to deposit any securities which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 and shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. Please confirm that the DLJ Parent Entities are now, foregoing correctly sets forth our agreement by signing and at any time during returning to the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt AffiliatesPlacement Agents the enclosed copy of this Agreement. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.Very truly yours,
Appears in 1 contract
Sources: Placement Agency Agreement (Pineapple Financial Inc.)
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) At all times from and after the 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 (until June 30, 2003, except with the approval or consent of the Board of Directors of NAC as evidenced by a resolution duly adopted by 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)Board, each Shareholder will shall not, and will cause each of its Affiliates (other than Exempt Affiliates) shall not permit any entity controlled by such Shareholder to, in any manner, directly or indirectly:
(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 (A) 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 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) 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, (I) each Shareholder shall, for each share of Series C Preferred Stock 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 (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 other shares of Common Stock as are then outstanding, there shall be deemed to be outstanding a number of shares of Common Stock equal to the product of (A) the number of shares of Series C Preferred Stock then outstanding times (B) ten (10) (which number shall be 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 repurchases or recapitalization result in the members of the Shareholder Group owning more than the Standstill Percentage at the effective time of such repurchase or recapitalization, no member of the Shareholder Group shall be obligated to divest him-, her- or itself of shares of NAC Capital Stock to meet the Standstill Percentage, but no member of the 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 acquired 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" (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents with respect to securities of NAC with regard to any matter;
(iii) seek to advise, encourage or influence any Person with respect to the voting of any securities of NAC, or induce, attempt to induce or in any manner assist any other Person in initiating any stockholder proposal or tender or exchange offer for securities of NAC or any change of control of NAC, or for the purpose of convening a stockholders' meeting of NAC; provided, that (A) any Shareholder may tender in any such tender or exchange offer and (B) no presentation before or other communication with the Board of Directors of NAC shall be deemed to constitute a violation of the foregoing restriction or prohibition;
(iv) acquire or agree to acquire, by purchase or otherwise, more than 5% of any Voting class of equity securities of any entity that, prior to the time such Shareholder acquires more than 5% of such class, is publicly disclosed (by filing with the Securities and Exchange Commission or voting rights otherwise), or direct or indirect rights or options is otherwise known to acquire any Voting Securities such Shareholder, to be the beneficial owner of more than 5% of the Company outstanding NAC Capital Stock or any of its Affiliates other than class or series thereof;
(Av) an acquisition as a result of a stock splitmake any public announcement regarding any possibility, stock dividend intention, plan or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 arrangement relating to a collective aggregate amount tender or exchange offer for securities of 3,000,000 shares NAC or a business combination (as such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization similar transaction that would result in a change of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or officer of the Company or its subsidiaries (and any shares issuable upon exercise thereofcontrol), (E) transfers sale of assets, liquidation or other extraordinary corporate transaction between such Shareholder and Related Transferees as permitted under Section 4.1(f) NAC, or (F) take any rights which are granted action that could reasonably be expected to all shareholders require NAC to make a public announcement regarding any of the Company foregoing;
(and vi) deposit any shares issuable upon exercise thereof); provided, however, that if the Shareholders securities of NAC in a voting trust or subject any securities 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 NAC to any arrangement 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 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 reason of the 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 the voting or investment decisions or (y) acquisitions of securities by a limited partner of NAC, other than as provided in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;this Agreement; or
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iiivii) form, join or in any way participate in a Group with respect to any securities of the Company partnership, limited partnership, syndicate or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 4;
(viii) disclose any intention, plan or arrangement, or make any public announcement group (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 in concert with othersany other Person, to seek to control or influence the management, Board of Directors or policies of the Company or its Affiliates (for this purpose, the actions except as a member of the Shareholder Designees in their capacity as directors Group), for the purpose of (A) acquiring, holding or voting of securities of NAC (other than pursuant to the Company shall not be deemed to be in contravention of this paragraph Merger Agreement), or (xi)); or
(xiiB) request a waiver of taking any of the provisions of any of paragraphs other actions restricted or prohibited under clauses (i) through (xiivi) of this Section 2.1 (except 6(a), or announce an intention to do, or enter into any request which would not require disclosure publicly arrangement or understanding with others to do, any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates of Shareholders who actions restricted or prohibited under clauses (i) are not Apollo/Blackstone Shareholders or their Affiliates, through (iivi) 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 2.16(a).
(c) The DLJ Shareholders represent and warrant to the Company that the DLJ Parent Entities are now, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Lockup, Standstill and Voting Agreement (National Auto Credit Inc /De)
Standstill. (a) Until Each Investor agrees that, for the period commencing on the date of this Agreement and ending on the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% the thirtieth (30th) calendar day preceding the opening of the Total Voting Powernomination window for submission of director nominees at the Company’s 2021 Annual Meeting, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and (ii) less than 10% 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 any of the Actual Voting Powerorganizational 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”), 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 hereofneither it nor any of its Affiliates will, 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 it will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly, in any manner other than pursuant to Section 6(c), acting alone or in concert with others:
(i) acquire, offer submit any stockholder proposal (pursuant to acquireRule 14a-8 promulgated by the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or agree to acquire, by purchase or otherwise, nominate 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject candidate for election to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 Rule 14a-11 of Regulation 14A), other than as expressly permitted 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlAgreement;
(ii) make engage in, directly or cause to be made indirectly, any proposal for “solicitation” (as defined in Rule 14a-1 of Regulation 14A) of proxies (or written consents) or otherwise become a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate “participant in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote ” (as those terms are such term is defined in Instruction 3 of Schedule 14A of Regulation 14A under the Exchange Act) with respect in opposition to the Company recommendation or its Affiliatesproposal of the Board, or communicate withrecommend or request or induce or attempt to induce any other person to take any such actions, or seek to advise, encourage or influence any Person, in any manner, other person with respect to the voting of, securities of the Company Common Stock (including any withholding from voting) or its Affiliates, or become grant a "participant" in any "election contest" (as those terms are defined or used in Rule 14a-11 under the Exchange Act) proxy with respect to the Company voting of the Common Stock or its Affiliates (other voting securities to any person other than non-public communications with other Shareholders to the Board or Affiliates of any Shareholder which would not require public disclosure persons appointed as proxies by any Person the Board;
(iii) seek to call, or solicitation of proxies in support to request the call of, a special meeting of the election Company’s stockholders, or make a request for a list of Shareholder Designeesthe Company’s stockholders or for any books and records of the Company;
(iv) form, Management Directors join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than a group consisting only of some or all of the Investors and 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)their Affiliates;
(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 vote for any nominee or to any third parties) otherwise solicit stockholders nominees for the approval of one or more stockholder proposals with respect election to the Company Board, other than those nominated or its Affiliates or induce or attempt to induce any other Person to initiate any stockholder proposal or seek election to or supported by the Board;
(vi) except as specifically provided in Section 1 and Section 2 of this Agreement, seek to place a representative or other Affiliate or nominee on the Board 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 or a change in the size or composition 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)Board;
(vii) acquire or agree, offer, sell seek or transfer propose to acquire, or cause to be acquired, ownership (including beneficial ownership) of any Voting Securities of the assets or business of the Company or any rights or options to receive Voting Securities except for Dispositions acquire any such assets or business from any person, in accordance with Article 4each 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 merger, consolidation, acquisition of control or other business combination, tender or exchange offer, purchase, sale or transfer of assets or securities, dissolution, liquidation, reorganization, change in structure or composition of the Board, change in the executive officers of the Company, change in capital structure, recapitalization, dividend, share repurchase or similar transaction involving the Company, its subsidiaries or its business, whether or not any such transaction involves a change of control of the Company (it being understood that the foregoing shall not restrict the Investors from tendering Common Stock, receiving payment for Common Stock or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board);
(ix) acquire, announce an intention to acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of (A) any interests in the 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 any securities beneficially owned by any of the Investors or their Affiliates); provided, 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 pledge, hypothecate or put any liens against the Company’s capital stock, except that an Investor may partake in customary margin transactions with a broker regulated by FINRA;
(xi) disclose publicly, or privately in a manner that could reasonably be expected to become public, 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, arrangement inconsistent with the foregoing;
(ixxii) take any action challenging the validity or enforceability of any provisions of this Section 3; or
(xiii) enter into any negotiationsagreement, arrangements arrangement or understandings with any third party with respect to understanding concerning any of the foregoing;
foregoing (xother than this Agreement) advise, assist or encourage or finance (or assist or arrange financing solicit any person to or for) any other Person in connection with undertake any of the foregoing;
(xi) otherwise act in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)foregoing activities.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Standstill. (a) Until The Investor Securityholders parties hereto agree that, from Closing until the earliest to occur earlier of (Ax) such time that the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) SLS Beneficial Ownership Percentage is 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 consummation of a Fundamental Change (the date on which the Greenwich Street Shareholders no longer own any any Conversion Shares“Standstill Period”), each Shareholder will notexcept as required in connection with the execution, delivery or performance of the Transaction Agreements and will the consummation of the transactions contemplated hereby and thereby, without the prior consent of the Company (evidenced by action of the Board), the Investor Securityholders shall not and the Investor Securityholders shall cause each of its their Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 except (Ax) an acquisition as a result of a stock split, stock dividend the Beneficial Ownership of or similar recapitalizationexercise of any Rights, (By) for the acquisition receipt of any Company Securities or other rights or securities from the Company pursuant to the terms of the Conversion Shares or the Securities (or the exercise or conversion of any such Company Securities or other rights or securities), including any increase in the number of shares of Common Stock which are subject to the Exchange Agreement, (C) with the prior written consent issuable upon conversion or exercise of the chairman Convertible Preferred Stock, the Junior Preferred Stock, the Notes or the Warrants as a result of any anti-dilution or other terms thereof or the Board exercise 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 other recapitalization of the Company and as reduced to reflect any such acquisitions rights pursuant to Section 2.1(a)(i)(C5.7 hereof and (z) Company Securities issued to the Appointed Directors or Nominated Directors in their capacities as such, if any, (A) acquire any Beneficial Ownership (or economic right tantamount thereto) of Company Securities or (B) authorize or make a tender offer, exchange offer or other offer or proposal, whether oral or written, to acquire Company Securities, in each case, if the Original Agreement) effect of such acquisition would be that the Common Stock, (D) stock options or similar rights granted Stock Beneficially Owned in the aggregate by the Company to an Affiliate of such Shareholder as compensation for performance as a director or officer of the Company or its subsidiaries (Investor Securityholders 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 all shareholders of the Company (and any shares 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 would exceed the Standstill Limit, provided that for purposes of calculating the number of 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 Beneficially Owned by the Company) that a violation has occurred Shareholders or any of Investor Securityholders and their Affiliates Affiliates, there shall have transferred any be excluded from such calculation shares of Common Stock held in violation of these provisions to unrelated third parties so that the Shareholders and their Beneficially Owned by 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 reason of the indirect acquisition Investor Securityholders that are not also Beneficially Owned by the Investor Securityholders, up to a maximum number of beneficial ownership shares of securities resulting from Common Stock that will be excluded pursuant to this clause equal to one percent (x1%) 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlthe Common Shares Outstanding;
(ii) make make, or cause in any way participate, directly or indirectly, in any “solicitation” of “proxies” to be made vote (as such terms are used in the rules of the SEC), or seek to advise or influence any proposal for a Reorganization Transaction except for Dispositions Person (other than (x) the Investor Securityholders or their Affiliates or (y) other than in accordance with Article 4and consistent with the recommendation of the Board) with respect to the voting of 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 Group with respect to any securities “group” as defined in Section 13(d)(3) of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 Act (other than non-public communications with other Shareholders a group comprised solely of the Investor Securityholders and their Permitted Transferees), for the purpose of voting, acquiring, holding, or Affiliates disposing 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)Voting Stock;
(v) initiatepublicly announce, 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 submit to the Company a proposal or offer 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 Affiliates parent) following such merger, consolidation or induce other business combination 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 transaction; (except pursuant to Section 3.1 of this Agreement2) 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 an acquisition by any Person, shall not be deemed 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 be in contravention any Person or Persons; or (4) a liquidation or dissolution of this paragraph (v))the Company;
(vi) take any action that results in any manner, agree, attempt, seek the Investor Securityholders having to file or propose (other than making any request for permission with respect thereto which would not require disclosure publicly or amend a statement on Schedule 13D pursuant to any third partyRule 13d-1(a) to deposit any securities of the Company or its Affiliates in any voting trust or similar arrangement or to subject any securities of rules and regulations promulgated under 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 4;
(viii) disclose any Exchange Act indicating an 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 proposal with respect to any of the foregoingevents described in clauses (i) through (v) above or with respect to any recapitalization or restructuring of the Company;
(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;
(xivii) otherwise act in concert with othersothers (other than with other Investor Securityholders and their Affiliates) to publicly effect or seek, offer or propose to seek to effect, control or influence the management, Board of Directors or policies of the Company in such a manner that would result in the Investor Securityholders having to file or its Affiliates (for this purpose, the actions amend a statement on Schedule 13D pursuant to Rule 13d-1(a) of the Shareholder Designees in their capacity as directors of rules and regulations promulgated under the Company shall not be deemed to be in contravention of this paragraph (xi))Exchange Act; or
(xiiviii) request a waiver of enter into any arrangements with any third party concerning any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)foregoing.
(b) Affiliates If, at any time prior to the termination of Shareholders who the Standstill Period, (i) are not Apollo/Blackstone Shareholders or their Affiliatesthe Company has entered into a definitive agreement, the consummation of which would result in a Company Change in Control Event, (ii) are a third party who is not Related Transferees 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 (iii) any ShareholderPerson shall have commenced and not withdrawn a bona fide public tender or exchange offer which if consummated would result in a Company Change in Control Event and the Board has not recommended that the stockholders of the Company reject such offer within the time period contemplated by Rule 14d-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 (ii), (iii), (iv), (v), (vi), (vii) are not in possession and (viii) of Section 5.6(a) (and any material non-public Information provided to Shareholders related acquisition of Beneficial Ownership 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 Investor Securityholders and/or their Affiliates") shall not be subject applicable to this Section 2.1the Investor Securityholders.
(c) The DLJ Shareholders represent and warrant to the Company that the DLJ Parent Entities are now, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties Anything in this Section 2.1(c5.6 to the contrary notwithstanding, this Section 5.6 shall not be construed to prohibit or restrict any actions taken by the any designee, nominee or appointee (including the Appointed Directors and the Nominated Directors) 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 or the exercise of the Investor Securityholders’ rights pursuant to Section 7.4 and 8.2 (and any related disclosure on Schedule 13D pursuant to Rule 13d-1(a) of the rules and regulations promulgated under the Exchange Act), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Standstill. (a) Until the earliest to occur of Provided that nothing contained herein will prevent or prohibit EIS from purchasing Voting Stock (Aas defined below) the tenth anniversary of the purchase of the Senior Preferred Company pursuant to subsection 5(b) or from acquiring Voting Stock pursuant to the conversion of the Series A Preferred Stock Purchase Agreement, (B) or the date on which Note or the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% exercise of the Total Voting PowerWarrant in accordance with their respective terms, 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 EIS will not, and will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with without 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 the "BOARD"), (i) acquire (or offer or agree to Section 3.1 of this Agreementacquire) 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) offer, sell or transfer any Voting Securities Stock; or rights to receive Voting Securities except for Dispositions in accordance with Article 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;
(ixii) enter into any negotiationsmerger, arrangements consolidation or understandings similar transaction with any third party with respect to any the Company, unless, in the case 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 each of the foregoing;
(xi) otherwise act in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through and (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third partyii), such transaction has been approved by the Board; provided, that this Section 2.1 the foregoing restrictions shall not restrict 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 inhibit indirectly). Notwithstanding the rights foregoing, EIS will not be obligated to dispose of any Voting Stock it owns if its percentage ownership is increased as a result of a Shareholder to exercise its voting rights as a stockholder decrease in the number of the Company (subject to Section 3.2)shares of Voting Stock outstanding.
(b) Affiliates The provisions of Shareholders who this Section 5 will terminate: (i) are not Apollo/Blackstone Shareholders or their Affiliatesif EIS owns less than ----------------------- [****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER THE SECURITIES ACT OF 1934, AS AMENDED. [****]% of the outstanding Voting Stock; (ii) are not Related Transferees if any person or group, excluding EIS, any affiliate of Elan, or any Shareholdergroup that includes Elan or any such affiliate, makes a BONA FIDE offer to acquire Voting Stock which would, if successful, result in the bidder's beneficial ownership of at least [****] % of the then outstanding Voting Stock; or (iii) are not in possession upon the second anniversary 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 date of this Section 2.1Agreement.
(c) The DLJ Shareholders represent and warrant to Company will give EIS prompt notice of the receipt by the Company of any written notice couched in such terms as to put the Company reasonably on notice of the likelihood that a person or group has acquired or is proposing to acquire an aggregate position of at least [****]% of the DLJ Parent Entities are nowoutstanding 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 at any time during Board determination to seek an acquirer for in excess of [****]% of the Standstill Period that they take actions that would be otherwise prohibited by Voting Stock.
(d) EIS will cause its affiliates and associates to comply with the provisions of this Section 2.1(a) will be5, Exempt Affiliateswhether directly or indirectly, individually or as part of a "group" (as such term is defined in Rule 13d-5 under the Exchange Act). Based upon the foregoing representations and warranties When used in this Section 2.1(c)5, the Company will consider the DLJ Parent Entities to be Exempt Affiliatesterm EIS includes EIS together with its affiliates and associates.
Appears in 1 contract
Sources: Securities Purchase Agreement (Photogen Technologies Inc)
Standstill. (a) Until Except as provided in Section 4.1(b), from the earliest to occur Closing until the later of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% of three years from the Total Voting PowerClosing, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and (ii) less than 10% of three months after no Vivo Nominee serves on the Actual Voting Power, excluding voting securities beneficially owned by Board (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 Vivo shall not, and will cause each of its Affiliates (other than Exempt Affiliates) not nor shall it permit any Affiliate to, directly or indirectly:, without the prior consent of the Company (acting through a resolution of the Company’s Non-Vivo Directors):
(i) acquire, offer to acquire, acquire or agree to acquire, whether by purchase 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, any (A) Beneficial Ownership of additional Voting Securities or voting rights 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 all of then-outstanding Warrants for the maximum number of shares of Common Stock issuable thereunder, regardless of whether such Warrants are then exercisable, and (2) the conversion of the Preferred Shares for the maximum number of shares of Common Stock issuable thereunder, regardless of whether such Preferred Shares are then convertible, which number of shares shall be 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 Agreement, pursuant to the exercise of the Warrants, 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 rights ownership interest in any indebtedness or options to acquire any Voting Securities debt securities of the Company or any of its Affiliates other than (A) an acquisition as a result of a stock splitSubsidiaries, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions except pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 4.2 of this provision shall be deemed to have occurred by reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlAgreement;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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);
(ivA) make, or in any way cause participate, directly or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) with respect to the Company or its Affiliates, or communicate with, seek to advise, encourage or influence any Personindirectly, in any manner“solicitation” of “proxies” (as such terms are used in the rules of the SEC) to vote Voting Securities, (B) seek to advise or knowingly influence any Person with respect to the voting of, securities of the Company any Voting Securities or its Affiliates, or become a "participant" (C) deposit any Voting Securities in any "election contest" voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of any Voting Securities, except for this Agreement;
(as those terms are defined iii) make any public announcement of a proposal or used in Rule 14a-11 under the Exchange Actoffer (with or without conditions) with respect to the Company any extraordinary transaction involving Vivo or its Affiliates and the Company including, without limitation, any tender offer, merger, consolidation or business combination;
(other than non-public communications with other Shareholders iv) effect or Affiliates of seek to effect any Shareholder which would not require public disclosure by any Person recapitalization, reclassification, liquidation or solicitation of proxies in support dissolution 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)Company;
(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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 4;
(viii) disclose any intention, plan or arrangement, or make arrangement by Vivo regarding the possibility of any public announcement of the events described in clauses (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 foregoingi) through (iv) above;
(ixvi) knowingly take any action that would 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 events described in clauses (i) through (iv) above; or
(vii) enter into any discussions, negotiations, arrangements agreements or understandings with any other third party Person (excluding Vivo’s advisors) 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates Notwithstanding the foregoing, the restrictions contained in Section 4.1(a) shall not (1) apply with respect to the designations of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliatesthe Vivo Nominee and Vivo Board Observer in accordance with this Agreement, (ii2) are not Related Transferees prevent a Vivo Director from taking any action in his or her capacity as a director of any Shareholder, (iii) are not in possession of any material non-public Information provided to Shareholders by the Company, (3) prevent Vivo or any of its subsidiaries Affiliates from voting its Voting Securities in its discretion, (4) apply to the acquisition of securities in or representatives pursuant control of another Person (including by way of merger or consolidation) or (5) apply to any acquisitions or investments by any bona fide employee benefit plan of Vivo or its Affiliates. In addition, the restrictions contained in Section 3.4 hereof or otherwise, and (iv) do not have voting or dispositive power over any Conversion Shares (such affiliates being "Exempt Affiliates"4.1(a) shall not prevent a private communication to the Board to the extent that such private communication would not reasonably be subject expected to this Section 2.1.
(c) The DLJ Shareholders represent and warrant require a public disclosure prior to any public announcement by the Company that the DLJ Parent Entities are now, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(ait (or its Board) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities has approved or entered into an agreement with respect to be Exempt Affiliatesa Change of Control Transaction or Fundamental Transaction.
Appears in 1 contract
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with Without the prior written consent of Placement Agent, from the chairman 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) shares of Ordinary Shares or options to employees, officers or directors of the Company pursuant to any share or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors and or a majority of the chief executive officer members of a committee of non-employee directors established for such purpose for services rendered to the Company, acquisitions by (b) securities upon the Apollo/Blackstone Shareholders exercise or exchange of up or conversion of securities exercisable or exchangeable for or convertible into Ordinary Shares issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to a collective aggregate amount increase the number of 3,000,000 shares such securities or to decrease the exercise price, exchange price or conversion price of such securities (as other than in connection with stock splits or combinations) or to extend the term of such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stocksecurities, (Dc) 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 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company issued pursuant to the Purchase Agreements and (d) securities issued pursuant to acquisitions or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate in a Group with respect thereto with the prior approval of strategic transactions approved by 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and non-public communication by a Shareholder with other Shareholders carry no registration rights that require or Affiliates permit the filing of any Shareholder which would not require public disclosure by registration statement in connection therewith during the prohibition period in Section 14 herein and provided that any Person, such issuance shall not only be deemed to be in contravention of this paragraph a Person (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 partythe equity holders of a Person) to deposit any securities which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 and shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. Please confirm that the DLJ Parent Entities are now, foregoing correctly sets forth our agreement by signing and at any time during returning to the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt AffiliatesPlacement Agents the enclosed copy of this Agreement. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.By: Name: Title:
Appears in 1 contract
Standstill. The Company and the Seller agree that, until the earlier of (a) Until the earliest Closing Date (subject to occur of (A) the tenth anniversary prior effectiveness of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Shareholders Agreement), (Bb) the date on upon which this Agreement is terminated in accordance with Section 9.01 (except in the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent event of (ix) less than 10% a termination of this Agreement by the Purchaser in a circumstance where the Seller is not entitled to terminate this Agreement pursuant to Section 9.01 as a result of the Total Voting Power, excluding voting securities beneficially owned by Seller’s or the Shareholders other than Company’s breach of this Agreement or where the Apollo/Blackstone Shareholders and (ii) less than 10% Termination Fee is not payable as a result 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 proviso to designate not more than one director pursuant to Article 3 hereofSection 9.02(a) or (y) a termination in accordance with Section 9.01(g)), and (Cc) termination under Section 2.2 (such period, solely in the "Standstill Period") (provided that the Standstill Period shall end event of (x) with respect a termination of this Agreement by the Purchaser in a circumstance where the Seller is not entitled to terminate this Agreement pursuant to Section 9.01 as a result of the DLJ Shareholders, on Seller’s or the date on which Company’s breach of this Agreement or where the DLJ Shareholders no longer own any Conversion Shares, and Termination Fee is not payable as a result of the proviso to Section 9.02(a) or (y) a termination in accordance with respect to the Greenwich Street ShareholdersSection 9.01(g), on 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 which behalf of the Greenwich Street Shareholders no longer own any any Conversion Shares)Company, each Shareholder will notthe Seller, and will cause each of its or their respective Affiliates (other than Exempt Affiliates) not towill, 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, by purchase directly or indirectly (whether beneficially, constructively or synthetically through any derivative, hedging or trading position or otherwise, ) any Voting Securities shares of Purchaser Common Stock or voting rights other securities or direct Equity Interests in any way related to the acquisition or indirect rights price of securities or options to acquire any Voting Securities interests of the Company Purchaser or any of its Affiliates other than (A) an acquisition as a result Subsidiaries or any material assets of a stock split, stock dividend the Purchaser or similar recapitalizationany of its Subsidiaries or division thereof, (Bii) the acquisition make, or in any way participate in, directly or indirectly, any “solicitation” of shares of Common Stock which are subject to the Exchange 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 “proxies” (as such number may be appropriately adjusted terms are used in the rules of the SEC promulgated under Section 14 of the Exchange Act) to reflect stock splitsvote, reverse stock splitsor seek to advise or influence any person or entity with respect to the voting of, stock dividends any voting securities of the Purchaser or its Subsidiaries, (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business combination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving the Purchaser or any other recapitalization of the Company and as reduced its Subsidiaries or their securities or assets (except with respect to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or officer of the Company or its subsidiaries (and any shares issuable upon exercise thereofconsummated Permitted Transfer), (E) transfers between such Shareholder and Related Transferees as permitted under Section 4.1(f) or (F) any rights which are granted to all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iiiiv) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote “group” (as those terms are defined in Regulation 14A under Section 13(d)(3) of the Exchange Act) in connection with respect any voting securities of the Purchaser or its Subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control, or influence control of, the management, Purchaser Board or policies of the 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 Section 220 of the Delaware General Corporation Law or otherwise, (vii) make or cause to be made any 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 transactions contemplated hereby and 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 clause (x) below), (viii) take any action that would reasonably be expected to cause or require the Purchaser to make a public announcement regarding any actions prohibited by this paragraph (except in connection with a Permitted Transfer), (ix) 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), other than an action to enforce the provisions of this Agreement, the Confidentiality Agreement or any other agreements related to the transactions 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 Agreement, the Confidentiality Agreement or any 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 Purchaser and its Affiliates, on the 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 connection with any of the foregoing. Neither the Company or its Affiliatesthe Seller nor any of their Affiliates or respective Representatives, shall directly or indirectly make, in each case to the Purchaser or a third party, any proposal, statement or inquiry, 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 4;
(viii) disclose any intention, plan or arrangement, whether written 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 actionoral, inconsistent with the foregoing;
(ix) enter into any negotiations, arrangements or understandings with any third party with respect to request the Purchaser or any of the foregoing;
(x) adviseits Representatives, assist directly 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 in concert with othersindirectly, to seek to control amend, waive or influence the managementterminate any provision of this Section 6.10, Board of Directors or policies of 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 of the date hereof, neither it nor its Affiliates owns (for this purposewhether 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 actions acquisition or price of securities or interests of the Shareholder Designees in their capacity as directors of the Company shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)Purchaser.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Tenneco Inc)
Standstill. During the Standstill Period, so long as the Company has not materially breached this Agreement and failed to cure such breach within five business days of written notice from the Icahn Group specifying any such breach, the Icahn Group and its Affiliates will not, without the prior written consent of the Company:
(a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) acquire, offer offer, seek or propose to acquire, or agree to acquire, directly or indirectly, by purchase or otherwiseotherwise (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 terms of, or 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 group required to file on Schedule 13D) or, if the Rights Plan (including any amendments thereto) and any replacement thereof and any other rights plan implemented by the Company, have expired or are otherwise no longer in effect, such higher amount that any other person or group is permitted to buy or own pursuant to the terms of, or 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 amendments thereto) or replacement thereof or other rights plan implemented by the Company or Section 203, as it has granted or hereafter does grant, to any such person or group);
(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the SEC), or seek to advise or influence any person with respect to the voting of, any Voting Securities Stock of the Company (other than in an Icahn Designee’s capacity as a member of the Board in a manner consistent with the Board’s recommendation in connection with such matter);
(c) separately or voting rights in conjunction with any other person in which it is or direct proposes to be either a principal, partner or indirect rights financing source or options is acting or proposes to acquire act as broker or agent for compensation, submit a proposal for or offer of (with or without conditions) (including to the Board), any Voting Securities Extraordinary Transaction. “Extraordinary Transaction” means any of the following involving the Company or any of its Subsidiaries or its or their securities or a material amount of the assets or businesses of the Company or any of its Affiliates other than (A) an acquisition as a result of a stock splitSubsidiaries: any tender offer or exchange offer, stock dividend or similar merger, acquisition, business combination, reorganization, restructuring, recapitalization, (B) the sale or acquisition of shares of Common Stock which are subject to the Exchange Agreementmaterial assets, liquidation or dissolution (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer of the Companycollectively, 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares issuable upon exercise thereof“Extraordinary Transaction”); provided, however, that if the Shareholders this subparagraph (c) shall not prevent an Icahn Designee acting in his 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 her capacity as 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities director of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in from raising such matter at the case of securities other than Voting Securities, 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)Board;
(iv) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Standstill. (a) Until As of the date hereof, you hereby represent and warrant to the Company that neither you nor any of your Representatives acting on your behalf or affiliates owns any securities of the Company. You agree that beginning on the date hereof and ending on the earliest to occur of (Ax) one year from the date of this letter agreement, (y) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the date on time at which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent Company enters into a definitive agreement with respect to (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 will cause each of its Affiliates (other than Exempt Affiliates) not toacquisition, directly or indirectly:
, of more than fifty percent (50%) of the Company’s outstanding common stock (or other securities representing more than fifty percent (50%) of the aggregate voting power of securities entitled to vote in an election of directors) or more than fifty percent (50%)of the assets of the Company and its subsidiaries on a consolidated basis or (ii) any tender or exchange offer, merger or other business combination or any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction (provided that, in the case of any transaction covered by this clause (ii), immediately following such transaction, any person (or the direct or indirect shareholders of such person) or group will beneficially own more than fifty percent (50%) of the Company’s outstanding common stock (or other securities representing more than fifty percent (50%) of the aggregate voting power of securities entitled to vote in an election of directors) of the Company or the surviving parent entity in such transaction), and (z) a person or group (I) acquires (whether via tender offer, exchange offer or otherwise) or (II) has commenced a tender offer or exchange offer under Rule 14(d) of the 1934 Act that, if completed in accordance with its terms, would result in the acquisition of, more than fifty percent (50%) of the Company’s outstanding common stock (or other securities representing more than fifty percent (50%) of the aggregate voting power of securities entitled to vote in an election of directors) (the “Standstill Period”), unless specifically invited in writing by the Board of Directors of the Company (or by a Representative of the Company on behalf of the Board of Directors), neither you nor any of your affiliates who receive Evaluation Material and are acting on your behalf or IAC/InterActiveCorp October 14, 2019 on behalf of other persons acting in concert with you will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way knowingly assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) acquire, offer to acquireany acquisition of any securities (or beneficial ownership thereof), 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 securities (or beneficial ownership thereof), or any material assets, indebtedness or businesses of the Company or any of its Affiliates other than (A) an acquisition as a result of a stock split, stock dividend or similar recapitalizationsubsidiaries, (Bii) the acquisition of shares of Common Stock which are subject to the Exchange Agreementany tender or exchange offer, (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer of merger or other business combination involving the Company, acquisitions by any of the Apollo/Blackstone Shareholders subsidiaries or assets of up to the Company or the subsidiaries constituting a collective aggregate amount significant portion of 3,000,000 shares (as such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization 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 reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) terms are used in the proxy rules of the Original AgreementSecurities and Exchange Commission) of Common Stock, (D) stock options or similar rights granted by the Company consents to an Affiliate of such Shareholder as compensation for performance as a director or officer vote any voting securities 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 all shareholders of the Company (and any shares 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 its affiliates; (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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iiib) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote “group” (as those terms are defined in Regulation 14A under the Exchange Act▇▇▇▇ ▇▇▇) with respect to the Company or its Affiliates, or communicate with, seek to advise, encourage or influence otherwise act in concert with any Person, person in any manner, with respect to the voting of, securities of the Company or its Affiliates, 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);
such securities; (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 partiesc) otherwise solicit stockholders for the approval of one act, alone 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek representation on or to control or influence the management, Board of Directors or policies of the Company or its Affiliates (for this purpose, to obtain representation on the actions Board of Directors of the Shareholder Designees in their capacity as directors Company; (d) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding any of the Company types of matters set forth in (a) above; or (e) enter into any discussions or arrangements with any third party (other than your Representatives) with respect to any of the foregoing; provided, that the foregoing obligations shall not apply to any acquisition, either directly or indirectly, of securities of a party or any of a party’s subsidiaries by any employee benefit or similar plan of the other party or such other party’s Representatives that does not have knowledge of, or access to, any Evaluation Material or Discussion Information (so long as such acquisition was not directed by a party or any of its Representatives that have knowledge of, or access to, any Evaluation Material or Discussion Information). You also agree during the Standstill Period not to request (in any manner that would reasonably be deemed likely to be in contravention cause the Company to disclose publicly) that the Company or any of its Representatives, directly or indirectly, amend or waive any provision of this paragraph (xiincluding this sentence)); or
. 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 (xii) including any confidential request a waiver of to amend or waive any of the provisions of any of paragraphs (i) through (xii) provision of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of paragraph 7) with the Company (subject to Section 3.2).
(b) Affiliates or its board of Shareholders who (i) are not Apollo/Blackstone Shareholders directors or their Affiliates, (ii) are not Related Transferees of at any Shareholder, (iii) are not in possession of time making any material non-public Information provided to Shareholders by the Company, its subsidiaries confidential offer 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 proposal to the Company that or its board of directors relating to any potential transaction, in each case, in such a manner as would not reasonably be expected to require the DLJ Parent Entities are now, and at any time during the Standstill Period that they take actions that would be otherwise prohibited public disclosure thereof by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliatesor any of its Representatives.
Appears in 1 contract
Standstill. (a) Until the earliest "Standstill Termination Date" (as hereinafter defined), Purchaser and its affiliates (which for purposes hereof shall not include Penske or any of its subsidiaries) will not, directly or indirectly, without the express permission of the Corporation's Board of Directors, (A) purchase or offer to occur 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 writing (in form reasonably acceptable to the Corporation) to be subject to and bound by the provisions of this Section 4.10; PROVIDED, 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 "Right of First Refusal Agreement" being executed in connection herewith, (ii) purchase additional Common Stock that does not represent more than 5% of the Corporation's aggregate outstanding shares of Common Stock, (iii) except to the extent limited by the Right of First Refusal Agreement, vote shares and exercise rights as directors and/or (iv) if and only if Purchaser owns at 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 more than 20.5% of the Corporation'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 tenth sixth anniversary of the purchase date of the Senior Preferred Stock pursuant to the Preferred Stock Purchase this Agreement, and (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% that Christopher R. Pook no longer serves as Chief Executive Officer of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and ▇▇▇▇▇▇▇▇▇▇▇ (ii) less than 10% ▇▇▇▇▇▇ within 120 days of the Actual Voting Powertermination of Mr. Pook's service a successor is appointed who is approved by Purchase▇, 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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, ▇▇▇▇▇ ▇pproval shall not be deemed to be in contravention of this paragraph (v));
(vi) in any manner, agree, attempt, seek unreasonably withheld 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2delayed).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with Without the prior written consent of Placement Agent, from the chairman 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) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any share or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors and or a majority of the chief executive officer members of a committee of non-employee directors established for such purpose for services rendered to the Company, acquisitions by (b) securities upon the Apollo/Blackstone Shareholders exercise or exchange of up or conversion of securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to a collective aggregate amount increase the number of 3,000,000 shares such securities or to decrease the exercise price, exchange price or conversion price of such securities (as other than in connection with stock splits or combinations) or to extend the term of such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stocksecurities, (Dc) 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 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company issued pursuant to the Purchase Agreements and (d) securities issued pursuant to acquisitions or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate in a Group with respect thereto with the prior approval of strategic transactions approved by 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and non-public communication by a Shareholder with other Shareholders carry no registration rights that require or Affiliates permit the filing of any Shareholder which would not require public disclosure by registration statement in connection therewith during the prohibition period in Section 14 herein and provided that any Person, such issuance shall not only be deemed to be in contravention of this paragraph a Person (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 partythe equityholders of a Person) to deposit any securities which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 and shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 provide to the Company that additional benefits in addition to the DLJ Parent Entities are nowinvestment of funds, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties but shall not include a transaction in this Section 2.1(c), which the Company will consider is issuing securities primarily for the DLJ Parent Entities purpose of raising capital or to be Exempt Affiliatesan entity whose primary business is investing in securities.
Appears in 1 contract
Sources: Placement Agency Agreement (Abundia Global Impact Group, Inc.)
Standstill. Without the approval or written consent of the Board of Directors, none of the General Atlantic Stockholders or any of their Affiliates, and none of the Coinvestor Stockholders or any of their respective Affiliates shall, severally and not jointly, at any time prior to the Standstill Expiration Date:
(a) Until the earliest purchase or otherwise acquire, or propose or offer to occur of (A) the tenth anniversary purchase or acquire, any shares of the purchase Company's capital stock, whether by tender offer, market purchase, privately negotiated purchase, merger or otherwise, any shares of the Senior Company's capital stock or any Common Stock Equivalents in excess of the number of shares of the Company's capital stock and Common Stock 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 D Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% terms thereof shall be excluded for purposes of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders calculating whether or not a Stockholder 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 its Affiliates have exceeded 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlCeiling;
(iib) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions as specified in accordance with Article 4;
(iii) formthis Agreement, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause participate, directly or participate inindirectly, in any "solicitation" of "proxiesproxy" to vote (as those such terms are defined or used in Regulation 14A under of the Exchange Act) with respect to the Company or its Affiliatesvote, or communicate with, seek to advise, encourage advise or influence any Person, in any manner, Person with respect to the voting of, securities any shares of the Company or its AffiliatesCompany's capital stock, or become a "participant" in any "election contest" (as those such terms are used or defined or used in Rule 14a-11 under Regulation 14A of the Exchange Act) with respect relating 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 Designeesdirectors of the Company; PROVIDED, Management Directors and Unaffiliated Directors nominated HOWEVER, that none of the General Atlantic Stockholders, the Coinvestor Stockholders or any of their respective Affiliates shall be deemed to have engaged in a "solicitation" or to have become a "participant" by reason of the Board membership of Directors in accordance with Section 3.1 hereof in circumstances in which a third party is soliciting parties for designees of the election General Atlantic Stockholders, the Coinvestor Stockholders or any of nominees not nominated by their respective Affiliates on the Board of Directors);
(vc) initiateform, propose or, except with join or in any way participate in a "group" (within the prior approval meaning of a majority Section 13(d)(3) 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 AgreementExchange Act) 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with othersany Person for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock; PROVIDED, HOWEVER, that (i) the General Atlantic Stockholders may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock, (ii) Vectis CP Holdings, LLC and any Affiliate thereof that acquires shares of the Company's capital stock (the "Vectis Stockholders") may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock and (iii) Cenwell Limited, Campina Enterprises Limited and any Affiliate thereof that acquires shares of the Company's capital stock (the "Cenwell Stockholders") may act as a group for the purpose of acquiring, holding, voting or disposing of any shares of the Company's capital stock; and PROVIDED FURTHER, 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 disposing of any shares of the Company's capital stock; or
(d) request the Company (or its directors, officers, employees or agents), to seek take any action which would reasonably be expected to control require pursuant to law the Company to make a public announcement or influence proposal or offer with respect to (i) any form of business combination or transaction involving the managementCompany including, Board without limitation, a merger, consolidation, tender or exchange offer, sale or purchase of Directors assets, or policies dissolution or liquidation of the Company or its Affiliates (for this purposeii) instigate, the actions of the Shareholder Designees in their capacity as directors of the Company shall not be deemed encourage or assist any Person to be in contravention of this paragraph (xi)); or
(xii) request a waiver of do any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)foregoing.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Stockholders Agreement (General Atlantic Partners LLC)
Standstill. (a) Until From the earliest to occur of Closing until Company Parent (Atogether with its Affiliates) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Beneficially Owns Acquiror Securities which would represent (i) representing less than 105% of the Total Acquiror Voting Power, excluding voting securities beneficially owned by Company Parent covenants and agrees that, without the Shareholders other than the Apollo/Blackstone Shareholders and (ii) less than 10% prior written consent of the Actual Voting PowerAcquiror or its Board of Directors, 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 Company Parent will not, and will not cause each or permit any of its Affiliates (other than Exempt controlled Affiliates) not to, directly or indirectly, to:
(i) 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;
(ii) make or join or become a participant in any Voting “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 direct performance of any obligations under this Agreement, the A&R Charter, the A&R Bylaws, the A&R Stockholders Agreement, or indirect the A&R Registration Rights Agreement, including bringing any claim to enforce its rights thereunder or options to acquire defending itself from any Voting Securities 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 Company Acquiror’s Board of Directors or any in discussions or deliberations among members of its Affiliates other than the Acquiror’s Board of Directors, solely in his or her capacity as a member of the Acquiror’s Board of Directors;
(Aiv) an acquisition acquisitions made on a pro rata basis (based on economic ownership) as a result of a stock split, stock dividend or similar dividend, reorganization, recapitalization, (B) the acquisition reclassification, combination, exchange of shares of Common Stock which are subject to the Exchange Agreement, (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer of the Company, acquisitions or other like change approved 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 Acquiror’s Board of Directors);
(v) initiate, propose or, except with the prior approval of acquisitions as a majority result of the entire Board exercise 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 Parent’s preemptive rights 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))5.22;
(vi) in any manner, agree, attempt, seek or propose acquisitions (other than making acquisitions consummated with the intent to circumvent the restrictions in Section 5.20(a)) as a result of Company Parent or any request for permission with respect thereto which would not require disclosure publicly or to any third party) to deposit any securities of its controlled Affiliates acquiring equity interests in a previously unaffiliated Person that Beneficially Owns Acquiror Securities at the time of the Company or its Affiliates 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 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 Shareholderthis Section 5.20(b)(vi));
(vii) offeracquisitions (other than acquisitions consummated with the intent to circumvent the restrictions in Section 5.20(a)) by any mutual fund, sell pension trust, hedge fund, private equity fund or transfer other investment vehicle in which Company Parent or any Voting Securities of its controlled Affiliates holds an interest, but which is not controlled or rights to receive Voting Securities except for Dispositions in accordance with Article 4advised by Company Parent or its controlled Affiliates;
(viii) disclose any intention, plan statement or arrangement, other communication to the extent necessary to comply with applicable Law or make any public announcement (subpoena or request permission other legal process or to make any such announcement other than making any respond to a request for permission which would not require disclosure publicly information from any Governmental Authority, self-regulatory body or to any third party), or induce any other securities exchange with jurisdiction over such Person to take any action, inconsistent with the foregoingfrom whom information is sought;
(ix) enter into any negotiationsstatement or other communication regarding Acquiror by Company Parent to its or its controlled Affiliates’ investors, arrangements potential investors or understandings with Representatives; provided that any third party with respect such communications are subject to any reasonable confidentiality obligations of the foregoingsuch investors or Representatives;
(x) advise, assist granting any liens or encourage encumbrances on any claims or finance 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 assist or arrange financing to or forwithdrawing from deposit) any other Person in connection Acquiror Securities with a fiduciary or depositary pursuant to a deposit agreement or arrangements (including any of the foregoingprime broker account);
(xi) soliciting quotes or bids from brokers, market makers or similar Persons in 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 act reflect the performance of, any Acquiror Securities;
(xiii) participation on the same basis as other stockholders of Acquiror in concert with othersany tender or exchange offer, to seek to control consolidation, business combination, acquisition, merger, Change of Control or influence the management, Board similar extraordinary transaction involving Acquiror or any sale of Directors all or policies 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 (for this purpose, the actions of the Shareholder Designees in their capacity as directors of the Company provided any response thereto shall not be deemed to be in contravention of this paragraph (xigoverned by Section 5.20(a)); or
(xiixv) request a waiver of Company Parent or any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) controlled Affiliates of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliates, (ii) are not Related Transferees of any Shareholder, (iii) are not taking action specifically invited in possession of any material non-public Information provided to Shareholders writing 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 2.1Acquiror’s Board of Directors.
(c) The DLJ Shareholders represent and warrant to the Company that the DLJ Parent Entities are nowprohibitions in Section 5.20(a) shall immediately terminate, and at Company Parent may engage in any time during of the Standstill Period that they take actions that would be otherwise prohibited by activities specified in Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c5.20(a), in the event that:
(i) Acquiror enters into a definitive written agreement providing for a Change of Control;
(ii) (A) any Person or Group (other than Company will consider Parent or any of its Affiliates) commences a tender offer, exchange offer or other similar offer that, if consummated, would result in a Change of Control of Acquiror and (B) the DLJ Parent Entities Board of Directors of Acquiror either (x) publicly recommends that Acquiror consummate such transaction or (y) 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 Change of Control otherwise occurs; or
(iv) Acquiror files for, or becomes subject to be Exempt Affiliatesa proceeding for, bankruptcy, reorganization, liquidation, dissolution or similar process.
Appears in 1 contract
Standstill. (a) Until Investor agrees that until the earliest to occur earlier of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase AgreementMarch 29, (B) 2005 and the date that Investor (together with its Affiliates) no longer beneficially owns Common Shares and/or Preferred Shares (including shares underlying the Warrants) representing on which an as converted basis, in the Apollo/Blackstone Shareholders ownaggregate, collectively, Voting Securities which would represent (i) less than 10at least equal to 10.0% of the Total Voting PowerCompany's outstanding Common Shares (making equitable adjustments for any conversions, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders reclassifications, reorganizations, stock dividends, stock splits, reverse splits 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) similar events which occur 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 SharesCommon Stock), each Shareholder will not, and will cause each of neither Investor nor its Affiliates (other than Exempt Affiliates) not towill, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with without 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 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" (within the meaning of Section 3.1 13(d)(3) of the 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 shares of capital stock issuable upon the conversion or exercise thereof) of the 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 agreements of Investor set forth in this AgreementSection 5.6 shall not apply (A) following the breach by the Company of any of the covenants set forth in Sections 4.4(b) or its Affiliates or seek 4.4(c) (or, except as otherwise provided in the removal introductory clauses to Sections 4.4(b) and 4.4(d) and in Section 4.4(g), the failure of the Designees of Investor to be elected as directors during the period Investor has the right to designate any member of individual for nomination to the Board of Directors pursuant to Section 4.4) in which event such agreements of the Company or its Affiliates Investor shall be of no further force and effect; (for this purpose, B) in the actions event that any of the Shareholder Designees in communicating following events occurs (without public disclosure x) the acquisition (whether by business combination, merger, tender or disclosure to third partiesexchange offer, or otherwise) with 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 in their capacity as directors (or a committee thereof) and issued pursuant to an option plan of the Company, representing 10% or more of the Common Shares held by ▇▇. ▇▇▇▇ or ▇▇. ▇▇▇▇▇▇, as applicable, as of the date hereof) and non-public communication by a Shareholder with other Shareholders or Affiliates the Investor and its Affiliates) of 20% of any Shareholder which would not require public disclosure by any Person, shall not be deemed to be in contravention class 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 equity securities of the Company or its Affiliates in any voting trust or similar arrangement or to subject any securities of substantially all of the Company assets of the Company, (y) the solicitation of proxies by any Person or its Affiliates to any other voting or proxy agreement, arrangement or understanding group (other than Investor and its Affiliates) to engage in any such agreements or understandings with other Shareholders or Affiliates of any Shareholder);
the transactions described in (vii) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 partyx), or induce any other Person to take any action, inconsistent with (z) the foregoing;
(ix) enter into any negotiations, arrangements or understandings with any third party with respect to public announcement of any of the foregoing;
, or of any intent to engage in the foregoing, in which event such agreements of the Investor shall be of no further force or effect; provided that if any transaction described in clause (y) or (z) above is definitively abandoned prior to its consummation (or, in the case of a tender or exchange offer, the Person making such tender or exchange offer does not acquire more than 20% of any class of equity securities of the Company), then such agreements shall thereupon be reinstated, subject to further suspension or reinstatement in the event of the occurrence of further events described in clauses (x), (y) or (z) of this proviso, respectively; and (C) (x) adviseto the extent of any sales or transfers of Common Shares prior to the earlier of the Second Closing or the termination date of the applicable Voting Agreement, assist or encourage or finance (or assist or arrange financing to or for) any other Person in connection with by any of the foregoing;
parties to the Voting Agreements (xi) otherwise act in concert with othersother than the Investor), or any of their transferees, to seek any Person not subject to control 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 influence transfers, or (y) upon the managementmaterial breach of the Voting 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, Board (1) upon which material breach, if arising from the failure of Directors or policies 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 its Affiliates parties immediately following the date of this Agreement (for this purpose, the actions or as of the Shareholder Designees 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 their capacity as directors of the Company shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any violation of the provisions of any the Voting Agreements, the Investor shall be entitled to purchase the number of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or Common Shares equal to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliates, (ii) are not Related Transferees aggregate amount of any Shareholder, (iii) are not in possession of any material non-public Information provided to Shareholders by the Company, its subsidiaries such sales 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 2.1transfers.
(c) The DLJ Shareholders represent and warrant to the Company that the DLJ Parent Entities are now, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Securities Purchase Agreement (Crown Acquisition Partners LLC)
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) Until 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 earliest Standstill Parties would collectively Beneficially Own more than (i) 4.9% of the Outstanding Ordinary Shares (as determined after giving effect to occur 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 (Aas determined after giving effect to Shares issued at the Second Closing) after the tenth anniversary of Second Closing Date but before the purchase of the Senior Preferred Stock Ordinary Shares pursuant to the Preferred Stock Purchase Seventh Target Warrant Agreement, or (Biii) more than 14.9% of the date on which Outstanding Ordinary Shares (as determined after giving effect to the Apollo/Blackstone Shareholders ownOrdinary Shares issued upon the exercise of the 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, collectivelyor (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, Voting Securities which would represent however, that (i) less than 10% 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 Total Voting Power, excluding voting securities beneficially owned Standstill Parties is increased as a result of a repurchase by the Shareholders other than Company of Outstanding Ordinary Shares, share split, share dividend or a recapitalization of the Apollo/Blackstone Shareholders 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 increasing; and (ii) less than 10% for purposes of clarification, the limitations set forth in this Section 3.1(a) shall in no way prohibit, restrict or limit the ability of the Actual Voting PowerStandstill Parties to acquire Ordinary Shares on the open market or otherwise so long as, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders; provided that the Shareholders at after giving effect to such time are entitled to designate not more than one director pursuant to Article 3 hereof, and (C) termination under Section 2.2 (such periodacquisitions, the "Standstill Period"Parties do not hold in excess of the relevant percentage(s) (provided that of Ordinary Shares set forth above during 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:time periods set forth above;
(ib) acquirepropose, offer to acquire, or agree to acquire, by purchase or otherwise, participate in any Voting Securities or voting rights or direct or indirect rights or options effort to acquire any Voting Securities of the Company or any of its Affiliates other than (A) an acquisition subsidiaries or all or substantially all of the assets of the Company and its subsidiaries taken as a result whole;
(c) propose, offer or participate in any tender offer, exchange offer, or other business combination or Change of a stock splitControl transaction involving the Company or any of its subsidiaries, stock dividend or similar any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary corporate transaction involving the Company or any of its subsidiaries;
(Bd) seek to call, request the acquisition of shares of Common Stock which are subject to the Exchange Agreementcall of, (C) with the prior written consent or call an extraordinary general meeting of the chairman of the Board of Directors and the chief executive officer shareholders of the Company, acquisitions by the Apollo/Blackstone Shareholders of up or make or seek to make 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 shareholder proposal at any other recapitalization general meeting of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares issuable upon exercise thereof); providedCompany, however, that if the Shareholders or any make a request for a list 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 longer beneficially own any such shares or have any agreement or understanding relating to such shares’s shareholders, 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 the supervisory board 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 supervisory board, or seek the removal of any member of from the Board of Directors of supervisory board, or otherwise acting alone or in concert with others, seek to control or influence the Company governance 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 policies of the Company;
(e) solicit powers of attorney, and non-public communication by a Shareholder proxies, designations or written consents of shareholders, or conduct any binding or nonbinding referendum with other Shareholders respect to Ordinary Shares, or Affiliates make or in any way participate in any “solicitation” of any Shareholder which would not require public disclosure by “proxy” (power of attorney) to vote any PersonOrdinary Shares with respect to any matter, shall not be deemed or become a participant in any contested solicitation for the election of members of the supervisory board with respect to be the Company (as such terms are defined or used in contravention of this paragraph (v)the Exchange Act and the rules promulgated thereunder);
(vif) make or issue or cause to be made or issued any public disclosure, announcement or statement (i) in support of any mannersolicitation described in clause (e) above, agree(ii) in support of any matter described in clause (d) above, attemptor (iii) concerning any potential matter described in clause (c) above;
(g) form, seek join, or propose (in any other than making any request for permission way participate in, a “partnership, limited partnership, syndicate or other group” with respect thereto which would not require disclosure publicly to Ordinary Shares, or to any third party) to deposit any securities of the Company or its Affiliates Ordinary Shares in any a voting trust or similar arrangement arrangement, or to subject any securities of the Company or its Affiliates Ordinary Shares to any other voting agreement or proxy agreementpooling arrangement, arrangement or understanding grant any power of attorney with respect to any Purchased Shares;
(other than h) except as otherwise provided by applicable law, rule or regulation, publicly disclose, or cause or facilitate the public disclosure of, any such intent, purpose, plan or proposal to 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 other Shareholders or Affiliates of any Shareholder);
(vii) offer, sell or transfer any Voting Securities or rights Third Party with respect to receive Voting Securities except for Dispositions in accordance with Article 4;
(viii) disclose any intention, plan or arrangementthe foregoing, or make advise, assist, knowingly encourage, support, provide financing to or seek to persuade 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 Third Party to take any action, inconsistent with the foregoing;
(ix) enter into any negotiations, arrangements or understandings with any third party action with respect to any of the foregoing;
(x) advise, assist or encourage act in concert with others or finance (or assist or arrange financing as part of a group with respect to or for) any other Person in connection with any of the foregoing;
(xi) otherwise act in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Investor Agreement (uniQure N.V.)
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 (a) Until the earliest to occur calculated on each date of (A) the tenth anniversary of the purchase of the Senior Preferred Stock 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 Preferred Stock Purchase AgreementExchange Act or the Securities Act, (B) the date on which the Apollo/Blackstone Shareholders ownas applicable, 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 containing 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 Sharesinformation), each Shareholder will not, and will cause each beneficial ownership of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 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 its Affiliates other than (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with the prior written consent such Permitted Transferees has acquired Equity Securities of the chairman Company in excess of the Board Advance Ownership Cap:
(a) Advance or any of Directors and the chief executive officer such Permitted Transferees from acquiring Equity Securities of the Company, acquisitions Company by the Apollo/Blackstone Shareholders way 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 dividends, reclassifications, recapitalizations, or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stock, (D) stock options or similar rights granted distributions by the Company to an Affiliate all holders of such Shareholder as compensation for performance as a director or officer Equity Securities of the Company on a pro rata basis;
(b) acquisitions by Advance or its subsidiaries (and any shares issuable upon exercise thereof), (E) transfers between of such Shareholder and Related Permitted Transferees as permitted under Section 4.1(f) or (F) any rights which are granted to all shareholders of Equity Securities of the Company (and any shares issuable upon exercise thereof); provided, however, that if the Shareholders or any of their Affiliates approved 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 advance 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 independent 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi))Board; or
(xiic) request a waiver acquisitions of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder Equity Securities of the Company (subject to Section 3.2).
(b) Affiliates of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliatesby ▇▇▇▇▇▇▇, (ii) are not Related Transferees of any Shareholder, (iii) are not in possession of any material non-public Information provided to Shareholders whether through the issuance by the Company, its subsidiaries the exercise or representatives pursuant to Section 3.4 hereof conversion of Equity Securities of the Company by ▇▇▇▇▇▇▇, 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Governance Agreement (Reddit, Inc.)
Standstill. (a) Until Without the earliest to occur prior written consent of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase AgreementPlacement Agent, (B) from the date on which hereof until thirty (30) days after the Apollo/Blackstone Shareholders ownClosing Date, collectively, Voting Securities which would represent the Company shall not (i) less than 10% issue, enter into any agreement to issue or announce the issuance or proposed issuance of the Total Voting Powerany Common Stock or common stock equivalents, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and an Exempt Issuance or (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 file 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 registration statement or any of its Affiliates amendment or supplement thereto, other than (A) an acquisition as a result of a stock split, stock dividend or similar recapitalizationthe 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 acquisition purpose of registering shares of Common Stock which are subject to or Common Stock Equivalents currently registered by the Exchange Company on Form S-1. For purposes of this Agreement, “Exempt Issuance” means the issuance of (Ca) with the prior written consent shares of Common Stock or options to employees, officers or directors of the chairman Company pursuant to any share or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors and or a majority of the chief executive officer members of a committee of non-employee directors established for such purpose for services rendered to the Company, acquisitions by (b) securities upon the Apollo/Blackstone Shareholders exercise or exchange of up or conversion of securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to a collective aggregate amount increase the number of 3,000,000 shares such securities or to decrease the exercise price, exchange price or conversion price of such securities (as other than in connection with stock splits or combinations) or to extend the term of such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stocksecurities, (Dc) 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 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company issued pursuant to the Purchase Agreement, and (d) securities issued pursuant to acquisitions or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate in a Group with respect thereto with the prior approval of strategic transactions approved by 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and non-public communication by a Shareholder with other Shareholders carry no registration rights that require or Affiliates permit the filing of any Shareholder which would not require public disclosure by registration statement in connection therewith during the prohibition period in Section 14 herein and provided that any Person, such issuance shall not only be deemed to be in contravention of this paragraph a Person (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 partythe equityholders of a Person) to deposit any securities which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 and shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. [Signature page follows] Please confirm that the DLJ Parent Entities are nowforegoing correctly sets forth our agreement by signing and returning to the Placement Agents the enclosed copy of this Agreement. Very truly yours, By: /s/ ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ Title: Authorized Representative Titan Partners Group LLC, a division of American Capital Partners, LLC ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇ Email: *** Accepted and Agreed to 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”), and at any time during each purchaser identified on the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will besignature pages hereto (each, Exempt Affiliates. Based upon the foregoing representations including its successors and warranties in this Section 2.1(c)assigns, a “Purchaser” and collectively, the Company will consider the DLJ Parent Entities to be Exempt Affiliates“Purchasers”).
Appears in 1 contract
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) Until no Party shall (and each Party shall procure that no person "acting in concert" with it (as such term is defined in the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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"Code) (provided that the Standstill Period shall end (xincluding Bidco) 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 Sharesshall), each Shareholder will not, and will cause each of its Affiliates (other than Exempt Affiliates) not to, directly either alone or indirectly:
(i) acquire, acting in concert with others acquire or offer to acquire, or agree cause another person to acquire or to offer to acquire, by purchase an interest in any shares or otherwiseother securities in the Target (including for these purposes, any Voting Securities securities carrying subscription or voting conversion rights relating to the Target's shares or direct securities, or indirect rights derivatives or options contracts for differences referenced to acquire any Voting Securities of the Company Target's shares) ("Target Securities"), or any of its Affiliates other than (A) enter into an acquisition agreement or arrangement as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 it or any person may acquire any interest in Target Securities, other recapitalization of than acquiring or offering to acquire Target Securities from the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stock, (D) stock options Target 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 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 all shareholders of the Company (and any shares 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 longer beneficially own any such shares or have entering into any agreement or understanding relating to such shares, this Section 2.1 shall arrangement as a result of which Target Securities may be deemed to not have been violated; acquired which is for the purpose of preventing or remedying a Default or potential Default and provided, further, that no violation of this provision shall be deemed to have occurred by reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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 involve acceptance of or agreement to any third party);
(iv) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 accept another takeover offer 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi))Target; or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).and
(b) no Party shall (and each Party shall procure that its Affiliates shall not) sell, transfer or otherwise dispose of Shareholders who (i) are not Apollo/Blackstone Shareholders or their Affiliatescause another person to sell, (ii) are not Related Transferees transfer or otherwise dispose of any Shareholderinterest in Target Securities or enter into an agreement or arrangement or accept any offer from any third party as a result of which it or any person may sell, (iii) are not in possession transfer or otherwise dispose of any material non-public Information provided to Shareholders by the Company, its subsidiaries or representatives pursuant to Section 3.4 hereof or otherwiseinterest in Target Securities.
8.2 Each Party accepts, and (iv) do not have voting agrees to advise their Authorised Recipients, that some or dispositive power over any Conversion Shares (such affiliates being "Exempt Affiliates") shall not all of the Confidential Information and the Joint Bid negotiations may be subject price sensitive information relating to this Section 2.1.
(c) The DLJ Shareholders represent Target Securities and warrant agrees to the Company that the DLJ Parent Entities are nowcomply, and at any time during the Standstill Period shall procure that they take actions that would be otherwise prohibited by Section 2.1(a) will betheir Authorised Recipients comply, Exempt Affiliates. Based upon the foregoing representations with all applicable insider dealing and warranties market abuse legislation in this Section 2.1(c), the Company will consider the DLJ Parent Entities relation to be Exempt Affiliatesdealings in Target Securities.
Appears in 1 contract
Sources: Joint Bidding Agreement
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 During the Standstill Period shall end (x) with respect to Term, neither the DLJ Shareholders, on the date on which the DLJ Shareholders no longer own Investor nor 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 will cause each of its Affiliates (other than Exempt Affiliatescollectively, the “Standstill Parties”) shall (and the Investor shall cause its Affiliates not to), except as expressly approved or invited in writing by the Company:
(a) directly or indirectly:
(i) acquire, acquire beneficial ownership of Shares of Then Outstanding Common Stock and/or Common Stock Equivalents, or make a tender, exchange or other offer to acquireacquire Shares of Then Outstanding Common Stock and/or Common Stock Equivalents, if after giving effect to such acquisition, the Standstill Parties would beneficially own more than the Standstill Limit; provided, however, that notwithstanding the provisions of this Section 3.1(a), if the number of shares constituting Shares of Then Outstanding Common Stock is reduced 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 if the aggregate ownership of the Company or any of its Affiliates other than (A) an acquisition 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 similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer a recapitalization of the Company, acquisitions by the Apollo/Blackstone Shareholders Standstill Parties shall not be required to dispose of up any of their holdings of Shares of Then Outstanding Common Stock even though such action resulted in the Standstill Parties’ beneficial ownership totaling more than the Standstill Limit; 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.
(b) directly or indirectly, (i) seek 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 have called any other recapitalization meeting of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) stockholders of the Original Agreement) of Common StockCompany, (Dii) stock options propose or similar rights granted nominate for election to the Company’s Board of Directors any person whose nomination has not been approved by the Company to an Affiliate of such Shareholder as compensation for performance as a director or officer majority of the Company or its subsidiaries Company’s Board of Directors (and any shares issuable upon exercise thereof)excluding the Designated Director, (E) transfers between such Shareholder and Related Transferees as permitted under Section 4.1(fif any) or (Fiii) 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 rights 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 are granted to all shareholders would result in a Change of Control of the Company (and any shares issuable upon exercise thereofan “Acquisition Proposal”); provided, however, that if from and after the Shareholders 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 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 actions otherwise prohibited 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 longer beneficially own any such shares or have any agreement or understanding relating to such shares, this Section 2.1 shall be deemed to 3.1(c) for so long as the Company maintains and does not have been violated; and provided, further, that no violation of this provision shall be deemed to have occurred by reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlwithdraw such recommendation;
(iid) make directly or cause to be made any proposal for indirectly, solicit proxies or consents or become a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate participant in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote solicitation (as those such terms are defined in Regulation 14A under the Exchange Act) in opposition to the recommendation of a majority of the Company’s Board of Directors with respect to the Company or its Affiliatesany matter, or communicate with, seek to advise, encourage 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 manner, 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) any merger, consolidation, business combination, tender or exchange offer, purchase of the 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 Section 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 or its Affiliates, or become a "participant" in any "election contest" (as those terms are defined or used in Rule 14a-11 under held by the Exchange Act) with respect to the Company Investor or its Affiliates (other than non-public communications with other Shareholders or Affiliates shall not constitute a violation of any Shareholder which would 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 require pursuant to the advance notice provisions set forth in the Company’s bylaws), in a confidential, non public disclosure by any Person or solicitation of proxies in support of the election of Shareholder Designeesmanner, Management Directors and Unaffiliated Directors nominated potential director candidates for consideration by the Board of Directors Company’s Nominating and Corporate Governance Committee, which candidates the Investor believes would be 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 best interest of the Company (except pursuant to Section 3.1 of this Agreement) or and 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)stockholders.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with Without the prior written consent of Placement Agent, from the chairman 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) Ordinary Shares or options to employees, officers or directors of the Company pursuant to any share or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors and or a majority of the chief executive officer members of a committee of non-employee directors established for such purpose for services rendered to the Company, acquisitions by (b) securities upon the Apollo/Blackstone Shareholders exercise or exchange of up or conversion of securities exercisable or exchangeable for or convertible into Ordinary Shares issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to a collective aggregate amount increase the number of 3,000,000 shares such securities or to decrease the exercise price, exchange price or conversion price of such securities (as other than in connection with stock splits or combinations) or to extend the term of such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stocksecurities, (Dc) 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 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company issued pursuant to the Purchase Agreements and (d) securities issued pursuant to acquisitions or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate in a Group with respect thereto with the prior approval of strategic transactions approved by 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and non-public communication by a Shareholder with other Shareholders carry no registration rights that require or Affiliates permit the filing of any Shareholder which would not require public disclosure by registration statement in connection therewith during the prohibition period in Section 14 herein and provided that any Person, such issuance shall not only be deemed to be in contravention of this paragraph a Person (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 partythe equityholders of a Person) to deposit any securities which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 and shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. Please confirm that the DLJ Parent Entities are nowforegoing 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, a division of American Capital Partners, LLC ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ New York, NY 10007 Attention: ▇▇▇▇ ▇▇▇▇▇ Email: **** Accepted and Agreed to as of the date first written above: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: CEO & Chairman Address for notice: Gorilla Technology Group Inc. Meridien House ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Marble Arch ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Email: **** THIS PLACEMENT AGENT ORDINARY SHARE PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time during on or after the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(adate hereof (the “Initial Exercise Date”) will beand on or prior to 5:00 p.m. (New York City time) on ____, Exempt Affiliates. Based upon 20301 (the foregoing representations “Termination Date”) but not thereafter, to subscribe for and warranties in this Section 2.1(cpurchase from Gorilla Technology Group Inc., a company organized under the laws of the Cayman Islands (the “Company”), up to ______ Ordinary Shares (as subject to adjustment hereunder, the Company will consider “Warrant Shares”). The purchase price of one Ordinary Share under this Warrant shall be equal to the DLJ Parent Entities to be Exempt AffiliatesExercise Price, as defined in Section 2(b).
Appears in 1 contract
Sources: Placement Agency Agreement (Gorilla Technology Group Inc.)
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% Agent, on behalf of Agent and the Total Voting PowerDebenture Holders, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders and agrees that it shall not exercise any rights (iiincluding, but not limited to, setoff rights) 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) nor assert any claims with respect to the DLJ ShareholdersCollateral or the Subsidiary Stock, nor seek to foreclose on the date on which the DLJ Shareholders no longer own its security interests, nor take any Conversion Shares, and (y) with respect to the Greenwich Street Shareholders, on the date on which the Greenwich Street Shareholders no longer own action or institute any any Conversion Shares), each Shareholder will not, and will cause each of its Affiliates (other than Exempt Affiliates) not toproceedings, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 ofCollateral (including, securities but not limited to, commencing or joining with any other creditor or creditors in commencing any Insolvency Proceeding against any Debtor) until the receipt by Agent, for the ratable benefit of the Company or its AffiliatesDebenture Holders, or become a "participant" of notice from GMAC CF that the GMAC CF Obligors have indefeasibly satisfied in any "election contest" full the GMAC CF Debt and from UPS that the UPS Obligors have indefeasibly satisfied in full the UPS Debt.
(as those terms are defined or used in Rule 14a-11 under the Exchange Actii) Notwithstanding Section 3(g)(i) (except, with respect to clause (C), any actions described in clause (C) shall be subject to, and not in contravention of, such Section) or any other provision of this Agreement to the Company contrary, this Agreement does not prohibit, restrict or its Affiliates limit a Debenture Holder's right independently of, and without the consent of, the Agent, for the ratable benefit of the Debenture Holders, or any other Lender, to: (A) receive shares of Tarrant's Common Stock upon conversion or exercise of the Debentures or any other than non-public communications with securities issued in connection therewith, and to seek specific performance thereof; or (B) receive payments to the extent provided for under Section 3(h)(i)(A) below; or (C) seek to collect the Subordinated Indebtedness or take any other Shareholders action, including a declaration of default as to, or Affiliates acceleration of, any Subordinated Indebtedness or assertion of any Shareholder which would not require public disclosure by claims or otherwise initiating any Person Insolvency Case, 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 instituting 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)legal proceeding against Tarrant.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with Without the prior written consent of Placement Agent, from the chairman 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) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any share or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors and or a majority of the chief executive officer members of a committee of non-employee directors established for such purpose for services rendered to the Company, acquisitions by (b) securities upon the Apollo/Blackstone Shareholders exercise or exchange of up or conversion of securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to a collective aggregate amount increase the number of 3,000,000 shares such securities or to decrease the exercise price, exchange price or conversion price of such securities (as other than in connection with stock splits or combinations) or to extend the term of such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stocksecurities, (Dc) 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 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company issued pursuant to the Purchase Agreements and (d) securities issued pursuant to acquisitions or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate in a Group with respect thereto with the prior approval of strategic transactions approved by 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and non-public communication by a Shareholder with other Shareholders carry no registration rights that require or Affiliates permit the filing of any Shareholder which would not require public disclosure by registration statement in connection therewith during the prohibition period in Section 14 herein and provided that any Person, such issuance shall not only be deemed to be in contravention of this paragraph a Person (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 partythe equityholders of a Person) to deposit any securities which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 and shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. Please confirm that the DLJ Parent Entities are nowforegoing 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, a division of American Capital Partners, LLC ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇ Email: Accepted and Agreed to as of the 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 (the “Warrant”) certifies that, for value received, American Capital Partners, LLC or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time during on or after the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(adate referred to above as the Initial Exercise Date (the “Initial Exercise Date”) will beand on or prior to 5:00 p.m. (New York City time) on ____, Exempt Affiliates. Based upon 20293 (the foregoing representations “Termination Date”) but not thereafter, to subscribe for and warranties in this Section 2.1(cpurchase from QUANTUM COMPUTING INC., Delaware corporation (the “Company”), up to _______ shares of common stock (as subject to adjustment hereunder, the Company will consider “Warrant Shares”), par value $0.0001 per share (the DLJ Parent Entities “Common Stock”) of the Company. The purchase price of one share of Common Stock under this Warrant shall be equal to be Exempt Affiliatesthe Exercise Price, as defined in Section 2(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) Until days after the earliest date 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 occur resign as a director prior to resigning, 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 (A35) days after such date; it being further understood that if the tenth anniversary applicable Icahn Nominee is no longer a member of the purchase Board due to circumstances in which the Icahn Group would be entitled to appoint a Replacement, such Icahn Nominee shall be deemed to continue to be a member of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent (i) less than 10% Board for all purposes 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 this Agreement until such time are entitled as the Icahn Group irrevocably waives in writing any right to either designate not more than one director pursuant to Article 3 hereof, and (Csuch a Replacement or appoint such a Replacement) termination under Section 2.2 (such period, the "“Standstill Period"”), so long as the Company has not materially breached this Agreement and failed to cure such breach within five (5) (provided that business days of written notice from any member of the Standstill Period shall end (x) with respect to Icahn Group specifying such breach, no member of the DLJ ShareholdersIcahn Group shall, on the date on which the DLJ Shareholders no longer own any Conversion Sharesdirectly or indirectly, and (y) with respect to each member of 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 will Icahn Group shall cause each of its the Icahn Affiliates (other than Exempt Affiliates) not to, directly or indirectly:, with respect to the Company and its controlled affiliates which are not publicly traded entities (it being understood that the foregoing shall not restrict the Icahn Nominees from discussing such matters addressed below privately with other members of the Board solely in their capacity as a director in a manner consistent with the Icahn Nominees’ fiduciary duties to the Company):
(i) acquire, offer to acquiresolicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or agree from the holders of, the voting securities of the Company (“Voting Securities”), or become a “participant” (as such term is defined in Instruction 3 to acquireItem 4 of Schedule 14A promulgated under the Exchange Act) in or assist any third party in any “solicitation” of any proxy, by purchase consent or otherwise, other authority (as such terms are defined under the Exchange Act) to vote or withhold from voting any Voting Securities (other than such encouragement, advice or voting rights influence that is consistent with Company management’s recommendation in connection with such matter);
(ii) encourage, advise or direct influence any other person or indirect rights assist any third party in so encouraging, assisting or options influencing any person with respect to acquire the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(iii) form or join in a partnership, limited partnership, syndicate or a “group” as defined under Section 13(d) of the Exchange Act, with respect to the Voting Securities, or otherwise support or participate in any effort by a third party with respect to the matters set forth in this Section 3;
(iv) present (or request to present) at any 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 Affiliates 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;
(Aviii) 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 acquisition as a result affiliate of a stock splitparty) commences an unsolicited tender offer or exchange offer for all of the outstanding Voting Securities that is not recommended by the Board, stock dividend 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, (1) the Icahn Group shall not directly or indirectly make, or cause to be made, by press release or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject public statement to the Exchange Agreementpress or media (including social media), (C) with the prior written consent of the chairman of the Board of Directors and the chief executive officer of the Companyor in an SEC or other public filing or otherwise, acquisitions by the Apollo/Blackstone Shareholders of up to a collective aggregate amount of 3,000,000 shares any statement or announcement that disparages (as such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or officer distinct from objective statements reflecting business criticism 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) affiliates but not of individual officers or (F) any rights which are granted to all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities directors of the Company or its Affiliates, other than with other Shareholders affiliates) the Company or Affiliates its affiliates or any of any Shareholder; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate in a Group their respective officers or directors with respect thereto with to matters relating to their service at the prior approval Company or its affiliates (including any former officers or directors); and (2) neither the Company nor any of a majority of the entire Board of Directors (which approval is requested in a manner which does not require disclosure publicly its officers or to any third party);
(iv) 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 any way cause an SEC or participate inother public filing, any "solicitation" of "proxies" to vote statement or announcement that disparages (as those terms are defined in Regulation 14A under distinct from objective statements reflecting business criticism of the Exchange ActIcahn 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, or communicate with, seek to advise, encourage or influence any Person, in any manner, with respect to affiliates. For the voting of, securities avoidance of the Company or its Affiliates, 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 purposedoubt, 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, foregoing restrictions shall not be deemed to be in contravention apply to advisors of this paragraph (v));
(vi) in any manner, agree, attempt, seek the Icahn Group 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 who are not, directly or its Affiliates in any voting trust indirectly, acting at the behest of, or similar arrangement or to subject any securities for the benefit of, such party. From the date of this Agreement until the end of the Company or Standstill Period, (1) the Icahn Group shall not permit any of its controlled Affiliates to do any of the items in this Section 3 that the Icahn Group is restricted from doing and shall not publicly encourage or support 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 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;
actions described in this Section 3 that the Icahn Group is restricted from doing and (x2) 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 in concert with others, to seek to control or 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 permit any of its controlled Affiliates to be in contravention of this paragraph (xi)); or
(xii) request a waiver of do any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties items in this Section 2.1(c), 3 that the Company will consider is restricted from doing and shall not publicly encourage or support any other person to take any of the DLJ Parent Entities to be Exempt Affiliatesactions described in this Section 3 that the Company is restricted from doing.
Appears in 1 contract
Sources: Nomination and Standstill Agreement (Freeport-McMoran Inc)
Standstill. (a) Until the earliest to occur of (A) the ---------- tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) the exercise of convertible securities acquired in compliance with the terms of this Agreement (including the acquisition of shares of Common Stock or 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 Common Senior Preferred Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original AgreementCompany) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Shareholder Agreement (Apollo Investment Fund Iii Lp)
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) From the date on which hereof until the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent later of (i) less than 10% of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders such time as it ceases to own any Securities and (ii) less than 10% of nine (9) months after 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 Investors are no longer entitled to designate not more than one director appoint an Investor Director pursuant to Article 3 hereof, and (C) termination under Section 2.2 the Certificate of Incorporation (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, Investor agrees that it shall not and will shall cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(ia) acquire, offer or propose to acquire, or agree to acquire, by purchase or otherwise, beneficial ownership of any Voting Securities or voting rights assets, or direct or indirect rights or options to acquire any Voting Securities or assets, of the Company Company, including derivative securities representing the right to vote or economic benefits of any of its Affiliates such Securities, other than (Ai) an acquisition as pursuant to a result of a stock split, stock dividend or similar recapitalizationPermitted Offer, (Bii) the acquisition of shares Preferred Stock and Warrants pursuant to the terms and conditions set forth in the SPA, (iii) upon the conversion of Preferred Stock and Class B Common Stock which are subject pursuant to the Exchange Agreementterms and conditions set forth in the SPA, the certificates of designation of such Preferred Stock and the Company’s Certificate of Incorporation, (Civ) upon the exercise of Warrants, pursuant to the terms and conditions set forth in the SPA and such Warrant, and (v) pursuant to the terms and conditions set forth in Article III of this Agreement; provided, that the transfer of Securities among the Investors and to or from any special purpose company formed to hold the beneficial ownership of such Securities, to the extent in compliance with the prior written consent transfer restrictions and procedures set forth in Section 9.1 of the chairman SPA, shall not be deemed a violation of this Section 5.1(a), provided any such special purpose company is owned exclusively by the Board Investors and their controlled Affiliates;
(b) 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;
(c) commence or complete, or propose to commence or complete, any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company, other than pursuant to a Permitted Offer;
(d) make, or in any way participate in, any Solicitation of Directors and proxies to vote or consent, or seek to advise or influence any Person with respect to the chief executive officer voting of, any Securities of the Company, acquisitions by the Apollo/Blackstone Shareholders of up or to become a collective aggregate amount of 3,000,000 shares (as such number may be appropriately adjusted Participant in any Election Contest with respect to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or officer of the Company or its subsidiaries (and grant a proxy to any shares issuable upon exercise thereof), (E) transfers between other Person to vote any Securities held by such Shareholder and Related Transferees as permitted under Section 4.1(f) or (F) any rights which are granted to all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to controlInvestor;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iiie) form, join or in any way participate in a 13D Group with respect to to, or otherwise act in concert with any securities Person in respect of, any Securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any ShareholderCompany; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate in a Group with respect thereto with the prior approval Investors’ formation of a majority 13D Group among themselves and any special purpose company formed to hold the beneficial ownership of the entire Board such Securities shall not be deemed a violation of Directors (which approval is requested in a manner which does not require disclosure publicly or to any third partythis Section 5.1(e);
(ivf) makeotherwise act, alone or in any way cause concert with others, to seek representation on or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) with respect to the Company or its Affiliates, or communicate with, seek to advise, encourage control or influence any Personthe management, in any manner, with respect to the voting of, securities of the Company or its Affiliates, 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 or 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 policies of the Company, and non-public communication except as expressly granted pursuant to the definitive agreements for the Transaction or 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))the Board;
(vig) in negotiate with or provide any manner, agree, attempt, seek or propose (other than making information to any request for permission Person with respect thereto which would not require disclosure publicly to, or make and statement or proposal 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 Person with other Shareholders or Affiliates of any Shareholder);
(vii) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 4;
(viii) disclose any intention, plan or arrangementrespect to, 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 proposal or to any third party)offer with respect to, or induce act as a financing source for or otherwise invest in any other Person in connection with, or otherwise solicit, seek or offer to take effect any action, inconsistent with the foregoing;transactions or actions that are prohibited pursuant to this Section 5.1; or
(ix) enter into any negotiations, arrangements or understandings with any third party with respect to any of the foregoing;
(xh) advise, assist or encourage or finance (or assist or arrange financing to or for) any other Person in connection with any of transactions or actions prohibited pursuant to the foregoing (a)-(g). Notwithstanding the foregoing;
(xi) otherwise act , nothing in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company or its Affiliates (for this purpose, Section 5.1 shall restrict in any way the actions of the Shareholder Designees any Investor Director in their such person’s capacity as directors of the Company shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)Director.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Investor Rights Agreement (Usec Inc)
Standstill. For two years after the Closing Date, none of Buyer, the JEDI Entities or their respective Subsidiaries (a) Until the earliest to occur will purchase any additional shares of (A) the tenth anniversary Common Stock, or securities convertible into or exchangeable for shares of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase AgreementCommon Stock, (B) the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent other than (i) less than 10% of the Total Voting Power, excluding voting securities beneficially owned in transactions approved by the Shareholders other than the Apollo/Blackstone Shareholders and Board of Directors of Seller, (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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to in connection with the Exchange AgreementGrand Gulf Transaction acquisition, (Ciii) with the prior written consent purchase 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 pursuant to the provisions 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 longer beneficially own any such shares or have any agreement or understanding relating to such sharesSection 8.12 hereof, 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 reason of the 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 (yiv) acquisitions of securities by a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
an Inadvertant Purchase, and (iib) make or cause participate in making any solicitation of proxies to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) vote Common Stock of Seller or form, join or in any way participate in a Group with respect to any securities "group" for the purpose of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 foregoing without 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 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 (for this purpose, the actions hold more than 14% of the Shareholder Designees 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 communicating 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 (without public disclosure including as a result of the death or disclosure voluntary resignation of such a designee). Other than as expressly provided herein, Buyer will be free to third parties) with exercise its rights as a stockholder, voting or otherwise, and regardless of whether the exercise of such rights might influence management, the Board of Directors or the stockholders of Seller. Buyer agrees that in their capacity as directors the event that it transfers more than 10% of the Company, issued and non-public communication by a Shareholder with other Shareholders or Affiliates outstanding shares of any Shareholder which would not require public disclosure by any Person, shall not be deemed to be in contravention of this paragraph Common Stock (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 determined as of the Company or its Affiliates in any voting trust or similar arrangement or to subject any securities time 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 partytransfer), or induce any other Person to take any action, inconsistent with then the foregoing;
(ix) enter into any negotiations, arrangements or understandings with any third party with respect to any transferee 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 in concert with others, to seek to control or 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 such shares shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 bound 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties restrictions set forth in this Section 2.1(c), 8.5 to the Company will consider extent the DLJ Parent Entities to be Exempt Affiliatessame are in full force and effect at the time of such transfer.
Appears in 1 contract
Standstill. (a) Until 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 Investment Company Act of 1940, as amended, or the Investment Advisers Act of 1940, as amended, agree that they shall not Beneficially Own any Voting Stock or Common Stock of the Company other than (i) the Shares, (ii) the Underlying Shares, (iii) all Common Stock and PS issued as a dividend on 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 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 respect of the PS, the Warrants or the Underlying Shares, (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 election by the Company under the Series C Warrants to have such Warrants exercisable for shares of Common Stock.
(b) The Purchasers shall not knowingly, after due inquiry, sell any shares of Common Stock or the Warrants to any Person or 13d Group which would, immediately following such sale, Beneficially Own in excess of ten percent (10%) of the issued and outstanding Voting Stock or Common 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.
(c) If the Purchasers are not in violation of this Section 5.10, the restrictions set forth in Section 5.10(b) shall not apply to any transfer of Warrants or Common Stock (i) to any partner or wholly-owned subsidiary of any Purchaser that agrees to be bound by the provisions this Section 5.10 as if it were a Purchaser for purposes of this Section, (ii) upon consummation of a business combination or similar transaction involving the Company, or an agreement relating thereto being approved by the Board, (iii) pursuant to a tender or exchange offer approved by, or recommended by, the Board or pursuant to which the Board has formally expressed no opinion and remains neutral toward such tender or exchange offer subject to the provisions of Rule 14d-9 promulgated under the Exchange Act, (iv) pursuant to a distribution by a Purchaser, substantially pro-rata, to equity owners of such Purchaser, or (v) pursuant to a bona fide underwritten public offering in which the Purchasers use reasonable efforts to obtain an agreement by the underwriters to make a good faith effort to prevent the sale to any one Person of more than five percent (5%) of the issued and outstanding Voting Stock or Common Stock of the Company.
(d) The restrictions set forth in Section 5.10(b) shall terminate upon the first to occur of (i) a Change of Control, (ii) 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 (Ai) any date on or after the tenth anniversary of the purchase Closing on which the Market Price per share of the Senior Preferred Common Stock pursuant to is at or below twelve dollars ($12.00) (provided that such price shall be adjusted in same manner as the Preferred Stock Purchase AgreementExercise Price as defined in the Warrants), (Bii) the any date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities Purchasers and any 13d Group of which would represent (i) they are a member shall Beneficially Own less than ten percent (10% %) of the Total Voting Powerissued and outstanding Common Stock of the Company, excluding voting securities beneficially owned (iii) a Change of Control of the type described in clause (a) of the definition thereof, (iv) a redemption by the Shareholders other than the Apollo/Blackstone Shareholders and (ii) less than 10% Board 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 hereofany rights granted under any Rights Agreement, and (Cv) 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 Board permitting by amendment or waiver of 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) acquire, offer to acquire, or agree to acquire, by purchase Rights Agreement or otherwise, any Voting Securities Non-financial Person to Beneficially Own twenty percent (20%) or voting rights more, or direct or indirect rights or options any Financial Person to acquire any Voting Securities Beneficially Own more than thirty-five percent (35%), of the Company or any of its Affiliates other than (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Voting Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(Cj) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 longer beneficially own any such shares or have any agreement or understanding relating to such shares, this Section 2.1 The Board shall be deemed entitled to not have been violated; and provided, further, that no violation of this provision shall be deemed to have occurred by reason of waive in writing the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 Purchasers' compliance 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any all of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2)5.10.
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Purchase Agreement (Eex Corp)
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) 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 director or 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "“solicitation" ” of "“proxies" ” to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Shareholder Agreements (Apollo Investment Fund Iv Lp)
Standstill. (a) Until Mutual hereby covenants and agrees that, on or before the earliest to occur of (A) the tenth fifth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 it will not, and will cause each Mutual Affiliates to not, without the prior written consent of its Affiliates (other than Exempt Affiliates) not toa majority of the members of the Company's Board of Directors, directly or indirectlydo any of the following except pursuant to Section 2 hereof:
(ia) acquire, offer or agree to acquire any shares of Common Stock (or options or warrants to acquire, or agree to acquiresecurities convertible into or exchangeable for, by purchase or otherwiseshares of Common Stock) if, 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 (A) an acquisition as a result of such acquisition, Mutual (together with any Mutual Affiliates) would Beneficially Own more than a stock split, stock dividend or similar recapitalization, (B) the acquisition number of shares of Common Stock which are subject in excess of a number equal to the Exchange Agreement, forty percent (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 other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C40%) of the Original Agreementoutstanding shares of Common Stock plus forty percent (40%) of the shares 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 director or officer Stock issuable upon conversion of the Company or its subsidiaries Convertible Notes plus forty percent (and any 40%) of the number of shares of Common Stock 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 all shareholders conversation of the Company (and any shares issuable upon exercise thereof)Preferred Stock; provided, however, that, for purposes of computing such amount, the 37,900 shares of Common Stock Beneficially Owned by Invista Capital Management, Inc. ("Invista") on December __, 1997 shall be excluded from such calculation for as long as such shares are regarded as Beneficially Owned by Invista (and no longer) and provided that if the Shareholders no executive officer or director of Mutual or Principal or any employee of Mutual, Principal, or any of their Affiliates affiliates other than officers, directors or employees of Invista charged with the responsibility thereof shall participate in good faith inadvertently acquire 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 more than 500,000 vote or act on written consent in any matter coming before shareholders at any shareholder meeting or shareholder action in excess of forty percent (40%) of the shares of Common Stock outstanding plus forty percent (40%) of the shares of Preferred Stock outstanding;
(b) directly or indirectly commence or participate in violation a solicitation of these provisions and within 15 days after proxies either to oppose the first date on election of any Person to the Board of Directors or to seek the removal of any Person from the Board of Directors, which the Shareholders have actual knowledge (including by way of written notice given Person has been nominated by the CompanyNominating Committee of the Board of Directors;
(c) that 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 violation has occurred Shareholders tender or any of their Affiliates shall have transferred exchange offer to purchase any shares of Common Stock held in violation of these provisions to unrelated third parties so that the Shareholders and their Affiliates no longer beneficially own or make 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) makepublic announcement concerning, or in submit any way cause or participate in, any "solicitation" of "proxies" written proposal to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 for a merger, share exchange, acquisition of this Agreement) or its Affiliates or seek the removal of any member substantially all of the Board of Directors of the Company assets 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 similar transaction involving 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Sources: Shareholders' Agreement (Principal Mutual Life Insurance Co)
Standstill. (a) Until LVMH agrees with Diageo that, subject to the earliest provisions of Articles 8.1(b), 8.2 and 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 occur of (A) the tenth anniversary be held by LVMH), acquire any of the purchase issued ordinary shares of Diageo (the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, "Diageo Shares" or Interests in Diageo Shares (Bas defined below) beyond LVMH's holding at the date on which the Apollo/Blackstone Shareholders own, collectively, Voting Securities which would represent hereof other than (i) less than 10% Diageo Shares, and Interests in Diageo Shares, allocated or offered in respect of the Total Voting Power, excluding voting securities beneficially owned by the Shareholders other than the Apollo/Blackstone Shareholders such holding of Diageo Shares pursuant to a capitalisation issue or rights issue and (ii) less than 10% in the event of the Actual Voting Power, excluding voting securities beneficially owned by the Shareholders a capital increase reserved to one or more persons 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 LVMH or any of its Affiliates other than (A) an acquisition as a result of a stock splitor any person with whom it is Acting in Concert, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 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 (which number of Diageo Shares or Interests in Diageo Shares may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stock, (D) stock options or similar rights granted purchased 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 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 LVMH on the Board of Directors of the Company (except pursuant to Section 3.1 of this Agreement) open market 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2otherwise).
(b) Affiliates The provisions of Shareholders who 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 (i) are not Apollo/Blackstone Shareholders or their Affiliates, (ii) are not Related Transferees either by reason of failure to sa tisfy any Shareholder, (iii) are not in possession conditions of any material non-public Information provided to Shareholders by the Company, its subsidiaries or representatives pursuant to Section 3.4 hereof 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 the date hereof the percentage of Diageo Shares, and (iv) do not have voting Interests in Diageo Shares, held directly or dispositive power over any Conversion Shares (such affiliates being "Exempt Affiliates") indirectly by LVMH immediately following the lapse of the offer.
8.2 Article 8.1 shall not be subject prevent acquisitions of Diageo Shares or interests in Diageo Shares from time to this Section 2.1time where, following such acquisitions, the holding (whether direct or indirect) of Diageo Shares and interests in Diageo Shares of LVMH remains below 15%.
(ca) Diageo agrees with LVMH that, subject to the 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), acquire any of the ordinary issued shares of LVMH (the "LVMH Shares") or any Interests in LVMH Shares (as defined below).
(b) The DLJ Shareholders represent 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 warrant effect but there shall be an exception such that there shall be no prohibition in respect of LVMH Shares or interests in LVMH Shares from time to time where, following such acquisitions, the Company that holding (whether direct or indirect) of LVMH Shares and interests in LVMH Shares of Diageo remains below the DLJ Parent Entities are nowholding of LVMH Shares, and at any time during Interests in LVMH Shares, held directly or indirectly by Diageo immediately following the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(alapse of
(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliatesmutatis mutandis.
Appears in 1 contract
Sources: Partnership Agreement (LVMH Moet Hennessy Louis Vuitton)
Standstill. (a) Until Seagate hereby agrees that, until the earliest to occur of (A) the tenth fifth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase AgreementEffective Date, (B) the 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 Seagate will not, and will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectlywithout Newco's prior written consent:
(i) acquire, offer or enter into discussions, negotiations, arrangements or understandings with any third party to acquire, or agree beneficial ownership (as defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of any Newco securities entitled to acquire, by purchase or otherwisevote with respect to the election of any directors of Newco ("VOTING STOCK"), any securities convertible into, exchangeable for or exerciseable for, or that may otherwise become, 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 (A) an acquisition as a result of a stock splitStock, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange 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 other recapitalization right to acquire Voting Stock, if the effect of such acquisition would be that Seagate would then beneficially own and/or have the Company and as reduced right to reflect any such acquisitions pursuant to Section 2.1(a)(i)(Cacquire more than [__] percent (__%) of the Original Agreement) of Common Stock, Voting Stock (D) 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 shares issuable upon exercise thereof"STANDSTILL PERCENTAGE"), (E) transfers between such Shareholder and Related Transferees as permitted under Section 4.1(f) or (F) any rights which are granted to all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those such terms are defined or used in Regulation 14A under the Exchange Act, as such Regulation is currently in effect) with respect to the Company or its Affiliates, or communicate with, seek to advise, encourage or influence voting of any Person, in any manner, with respect Voting Stock if Newco is at the time of such solicitation publicly-traded and subject to the voting of, securities of the Company or its Affiliates, or become a "participant" in any "election contest" (as those terms are defined or used in Rule 14a-11 proxy rules promulgated 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);; or
(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 partiesiii) otherwise solicit stockholders for the approval of one seek, either alone 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control the Newco Board or influence the management, Board of Directors or policies of Newco. Notwithstanding the Company or foregoing, nothing herein shall limit Seagate's ability to exercise its Affiliates (for this purpose, the actions of the Shareholder Designees in their capacity as directors of the Company shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) rights under Section 5 hereof. For purposes of this Section 2.1 4, any shares of Newco Common Stock or 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 (except including any request which would not require disclosure publicly or options to any third party); provided, that this Section 2.1 shall not restrict or inhibit purchase Newco securities issued to such persons under the rights of a Shareholder to exercise its voting rights as a stockholder terms of the Company (subject to Section 3.2).
(b) Affiliates 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"Plan) shall not be subject to this Section 2.1excluded from the calculation of the number of shares of Voting Stock held by Seagate.
(c) The DLJ Shareholders represent and warrant to the Company that the DLJ Parent Entities are now, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties in this Section 2.1(c), the Company will consider the DLJ Parent Entities to be Exempt Affiliates.
Appears in 1 contract
Standstill. (a) Until the earliest to occur of (A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, (B) the 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 will cause each of its Affiliates (other than Exempt Affiliates) not to, directly or indirectly:
(i) 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 (A) an acquisition as a result of a stock split, stock dividend or similar recapitalization, (B) the acquisition of shares of Common Stock which are subject to the Exchange Agreement, (C) with Without the prior written consent of Placement Agent, from the chairman 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) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any share or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors and or a majority of the chief executive officer members of a committee of non-employee directors established for such purpose for services rendered to the Company, acquisitions by (b) securities upon the Apollo/Blackstone Shareholders exercise or exchange of up or conversion of securities exercisable or exchangeable for or convertible into Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to a collective aggregate amount increase the number of 3,000,000 shares such securities or to decrease the exercise price, exchange price or conversion price of such securities (as other than in connection with stock splits or combinations) or to extend the term of such number may be appropriately adjusted to reflect stock splits, reverse stock splits, stock dividends or any other recapitalization of the Company and as reduced to reflect any such acquisitions pursuant to Section 2.1(a)(i)(C) of the Original Agreement) of Common Stocksecurities, (Dc) 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 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 all shareholders of the Company (and any shares 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 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 reason of the 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 a limited partner in any Shareholder or Affiliates thereof as to which limited partner no Shareholder or its Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group with respect to any securities of the Company issued pursuant to the Purchase Agreements and (d) securities issued pursuant to acquisitions or its Affiliates, other than with other Shareholders or Affiliates of any Shareholder; provided, however, that in the case of securities other than Voting Securities, Shareholders may participate in a Group with respect thereto with the prior approval of strategic transactions approved by 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) make, or in any way cause or participate in, any "solicitation" of "proxies" to vote (as those terms are defined in Regulation 14A under the Exchange Act) 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 Affiliates, 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 disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and non-public communication by a Shareholder with other Shareholders carry no registration rights that require or Affiliates permit the filing of any Shareholder which would not require public disclosure by registration statement in connection therewith during the prohibition period in Section 14 herein and provided that any Person, such issuance shall not only be deemed to be in contravention of this paragraph a Person (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 partythe equityholders of a Person) to deposit any securities which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business 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) offer, sell or transfer any Voting Securities or rights to receive Voting Securities except for Dispositions in accordance with Article 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 in concert with others, to seek to control or 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 and shall not be deemed to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of paragraphs (i) through (xii) of this Section 2.1 (except any request which would not require disclosure publicly or to any third party); provided, that this Section 2.1 shall not restrict or inhibit the rights of a Shareholder to exercise its voting rights as a stockholder of the Company (subject to Section 3.2).
(b) Affiliates 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 provide to the Company that additional benefits in addition to the DLJ Parent Entities are nowinvestment of funds, and at any time during the Standstill Period that they take actions that would be otherwise prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the foregoing representations and warranties but shall not include a transaction in this Section 2.1(c), which the Company will consider is issuing securities primarily for the DLJ Parent Entities purpose of raising capital or to be Exempt Affiliatesan entity whose primary business is investing in securities.
Appears in 1 contract