Standstill Restrictions. (a) Subject to applicable law, including Section 13(d) and (g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), except as permitted pursnnnt to the terms of this Agreement, during the term of this Agreement, the Ramius Group shall not, and shall cause their Affiliates and Associates (as defined below) under its control or direction not to, in any manner, directly or indirectly: (i) solicit (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) proxies or consents to vote any securities of Actel, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote any shares of Common Stock with respect to any matter, or become a “participant” in any “contested solicitation” for the election of directors with respect to Actel (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of all of Actel’s nominees and proposals; (ii) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) of any Common Stock or other securities issued by Actel, if in any such case, immediately after the taking of such action, the Ramius Group would, in the aggregate, collectively beneficially own more than the greater of (i) 14.9% of the then outstanding shares of Common Stock, or (ii) such percentage of the then outstanding shares of Common Stock as is 0.1% less than the amount causing the Ramius Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights Agreement, dated October 17, 2003, as the same may be amended; (iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a group comprised solely of the Ramius Group); (iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius Group; (v) otherwise act, alone or in concert with others to (1) make any public statement critical of Actel, its directors or management, other than as contemplated by Section 4(a)(vi)(3) below or (2) control or seek to control the Board, other than through non public communications with the officers and directors of Actel; (vi) other than as provided in this Agreement, make any public announcement with respect to, or offer to effect, seek or propose (with or without conditions) a merger, acquisition, disposition or other business combination involving Actel, other than through non public communications with the officers and directors of Actel; provided, however, that nothing herein will limit the ability of (1) any member of the Ramius Group, or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, (2) the 2009 Settlement Directors to exercise their rights as members of the Board while serving as members of the Board or (3) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel or other business combination involving Actel and not supported by Mr, ▇▇▇▇▇; (vii) seek, alone or in concert with others, (1) to call a meeting of shareholders, or (2) representation on the Board, except as specifically contemplated in Section 3(a) and Section 4(b), or (3) the removal of any member of the Board; or (viii) publicly disclose any request to amend, waive or terminate any provision of this Agreement. (b) Notwithstanding anything contained herein to the contrary, any member of the Ramius Group, and any Affiliate or Associate of any such member, shall be entitled to: (i) subject to Section 5, vote their shares in favor of the election of the2009 Settlement Directors at the 2010 Annual Meeting and on any other proposal duly brought before the 2010 Annual Meeting, or otherwise vote as the Rarnius Group determines in their sole discretion; (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor; (iii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by shareholders at the 2011 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Restated Articles or the Bylaws; and (iv) In the event a special meeting is called by a shareholder of Actel with respect to the removal of directors, the Ramius Group may (A) cumulate the vote of the shares of Common Stock held by the Ramius Group and vote in favor of the 2009 Settlement Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Directors; provided, however, that if Actel solicits proxies to vote against the removal of all directors, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Directors. (c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 promulgated by the SEC under the Exchange Act.
Appears in 2 contracts
Sources: Confidentiality Agreement (Ramius LLC), Confidentiality Agreement (Raging Capital Management, LLC)
Standstill Restrictions. (a) Subject to applicable law, including Section 13(d) and (g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), except as permitted pursnnnt pursuant to the terms of this Agreement, during beginning on the term of this Agreementdate hereof and for a period ending December 31, 2009, the Ramius Sigma-Tau Group shall not, and shall cause their its Affiliates and Associates (as defined below) under its control or direction not to, in any manner, directly or indirectly:
(i) solicit (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) proxies or consents to vote any securities of ActelSciClone, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote any shares of Common Stock with respect to any matter, or become a “participant” in any “contested solicitation” for the election of directors with respect to Actel SciClone (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of all of ActelSciClone’s nominees and proposalsconsistent with this Agreement;
(ii) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) of any Common Stock or other securities issued by Actel, if in any such case, immediately after the taking of such action, the Ramius Group would, in the aggregate, collectively beneficially own more than the greater of (i) 14.9% of the then outstanding shares of Common Stock, or (ii) such percentage of the then outstanding shares of Common Stock as is 0.1% less than the amount causing the Ramius Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights Agreement, dated October 17, 2003, as the same may be amendedSciClone;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a group comprised solely of the Ramius Sigma-Tau Group);
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius Sigma-Tau Group;
(v) otherwise actdiscuss publicly the circumstances surrounding the negotiation and execution of this Agreement.
(b) Subject to applicable law, alone or in concert except as permitted pursuant to the terms of this Agreement, and provided that SciClone and its Board fully comply with others to their respective obligations hereunder, beginning on the date hereof and for a period of one (1) make any public statement critical of Actelyear, the Sigma-Tau Group shall not, and shall cause its directors or management, other than Affiliates and Associates (as contemplated by Section 4(a)(vi)(3defined below) below or (2) under its control or seek to control the Boarddirection not to, other than through non public communications with the officers and directors of Actel;in any manner, directly or indirectly:
(vi) other than as provided in this Agreement, make any public announcement with respect to, or offer to effect, seek or propose (with or without conditions) a merger, acquisition, disposition or other business combination involving Actel, other than through non public communications with the officers and directors of Actel; provided, however, that nothing herein will limit the ability of (1) any member of the Ramius Group, or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, (2) the 2009 Settlement Directors to exercise their rights as members of the Board while serving as members of the Board or (3) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel or other business combination involving Actel and not supported by Mr, ▇▇▇▇▇;
(viii) seek, alone or in concert with others, (1) to call a special meeting of shareholdersSciClone stockholders, or (2) representation on the Board, except as specifically contemplated in Section 3(a) and Section 4(b), or (3) the removal of any member of the Board; or
(viiiii) publicly disclose any request to amend, waive or terminate any provision of this Agreement.
(bc) Notwithstanding anything contained herein to the contrary, any member of the Ramius Sigma-Tau Group, and any Affiliate or Associate of any such member, shall be entitled to:
(i) subject to Section 5, vote their its shares in favor of the election of the2009 Settlement the Sigma-Tau Directors at the 2010 2009 Annual Meeting and on any other proposal duly brought before the 2010 2009 Annual Meeting, or otherwise vote as the Rarnius Sigma-Tau Group determines in their sole discretion;
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor;
(iii) announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of SciClone or other business combination involving SciClone;
(iv) subject to Section 5, vote its shares of Common Stock in its discretion on any matter submitted to a vote of the stockholders of the Company;
(v) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by shareholders stockholders at the 2011 2010 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Restated Articles Certificate or the Bylaws; and;
(ivvi) In in the event a special meeting is called by a shareholder stockholder of Actel SciClone with respect to the removal of directors, the Ramius Group may (A) cumulate the vote of all the shares of Common Stock held by the Ramius Sigma-Tau Group and vote in favor of the 2009 Settlement Sigma-Tau Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Sigma-Tau Directors; providedand
(vii) make any public announcement with respect to, howeverand offer to effect, that if Actel solicits proxies to vote against the removal of all directorsseek or propose (with or without conditions) a merger, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Directorsacquisition, disposition or other business combination involving SciClone.
(cd) Notwithstanding anything contained herein to the contrary, the Sigma-Tau Directors shall be entitled to exercise their rights as members of the Board while serving as members of the Board.
(e) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 12b-2 promulgated by the SEC under the Exchange Act.
Appears in 2 contracts
Sources: Shareholder Agreement (Sciclone Pharmaceuticals Inc), Shareholder Agreement (Sciclone Pharmaceuticals Inc)
Standstill Restrictions. (a) Subject to applicable law, including Section 13(d) and (g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), except as permitted pursnnnt pursuant to the terms of this Agreement, during the term of this Agreement, the Ramius Group shall not, and shall cause their Affiliates and Associates (as defined below) under its control or direction not to, in any manner, directly or indirectly:
(i) solicit (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) proxies or consents to vote any securities of Actel, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote any shares of Common Stock with respect to any matter, or become a “participant” in any “contested solicitation” for the election of directors with respect to Actel (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of all of Actel’s nominees and proposals;
(ii) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) of any Common Stock or other securities issued by Actel, if in any such case, immediately after the taking of such action, the Ramius Group would, in the aggregate, collectively beneficially own more than the greater of (i) 14.9% of the then outstanding shares of Common Stock, or (ii) such percentage of the then outstanding shares of Common Stock as is 0.1% less than the amount causing the Ramius Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights Agreement, dated October 17, 2003, as the same may be amended;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a group comprised solely of the Ramius Group);
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius Group;
(v) otherwise act, alone or in concert with others to (1) make any public statement critical of Actel, its directors or management, other than as contemplated by Section 4(a)(vi)(3) below or (2) control or seek to control the Board, other than through non public communications with the officers and directors of Actel;
(vi) other than as provided in this Agreement, make any public announcement with respect to, or offer to effect, seek or propose (with or without conditions) a merger, acquisition, disposition or other business combination involving Actel, other than through non public communications with the officers and directors of Actel; provided, however, that nothing herein will limit the ability of (1) any member of the Ramius Group, or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, (2) the 2009 Settlement 2)the Ramius Directors to exercise their rights as members of the Board while serving as members of the Board or (3) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel or other business combination involving Actel and not supported by Mr, ▇▇. ▇▇▇▇▇;
(vii) seek, alone or in concert with others, (1) to call a meeting of shareholders, or (2) representation on the Board, except as specifically contemplated in Section 3(a), Section 3(c), Section 3(d) and Section 4(b), or (3) the removal of any member of the Board; or
(viii) publicly disclose any request to amend, waive or terminate any provision of this Agreement.
(b) Notwithstanding anything contained herein to the contrary, any member of the Ramius Group, and any Affiliate or Associate of any such member, shall be entitled to:
(i) subject to Section 5, vote their shares in favor of the election of the2009 Settlement the Ramius Directors at the 2010 2009 Annual Meeting and on any other proposal duly brought before the 2010 2009 Annual Meeting, or otherwise vote as the Rarnius Ramius Group determines in their sole discretion;
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor;
(iii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by shareholders at the 2011 2010 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Restated Articles or the Bylaws; and
(iv) In the event a special meeting is called by a shareholder of Actel with respect to the removal of directors, the Ramius Group may (A) cumulate the vote of the shares of Common Stock held by the Ramius Group and vote in favor of the 2009 Settlement Ramius Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Ramius Directors; provided, however, that if Actel solicits proxies to vote against the removal of all directors, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Ramius Directors.
(c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 12b-2 promulgated by the SEC under the Exchange Act.
Appears in 2 contracts
Sources: Shareholder Agreement (Ramius LLC), Shareholder Agreement (Actel Corp)
Standstill Restrictions. (a) Subject Each member of the Ramius Group agrees that, from the date of this Agreement until the date that is ten (10) business days prior to applicable lawthe deadline for the submission of stockholder nominations for the 2011 Annual Meeting (the “Standstill Period”), including Section 13(dneither it nor any of its Affiliates or Associates under its control or direction will, and it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) and engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (g) of as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended or the rules or regulations thereunder (the “Exchange Act”), except as permitted pursnnnt to the terms ) of this Agreement, during the term of this Agreement, the Ramius Group shall not, and shall cause their Affiliates and Associates (as defined below) under its control or direction not to, in any manner, directly or indirectly:
(i) solicit (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) proxies or consents to vote any securities of Actel(including, or make, or in any way participate inwithout limitation, any “solicitation” solicitation of consents to call a special meeting of stockholders and any “proxy” within the meaning of solicitation or nomination pursuant to Rule 14a-1 promulgated by the SEC 14a-11 under the Exchange Act to vote any shares of Common Stock Act), in each case, with respect to any matter, or become a “participant” in any “contested solicitation” for securities of the election of directors with respect to Actel (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of all of Actel’s nominees and proposalsCompany;
(ii) purchase seek to advise, encourage, support or cause influence any person with respect to be purchased the voting or otherwise acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) disposition of any Common Stock or other securities issued by Actel, if in any such case, immediately after the taking of such action, the Ramius Group would, in the aggregate, collectively beneficially own more than the greater of (i) 14.9% of the then outstanding shares Company at annual or special meeting of Common Stockstockholders, or (iiexcept in accordance with Section 4(a)(vii) such percentage of the then outstanding shares of Common Stock as is 0.1% less than the amount causing the Ramius Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights Agreement, dated October 17, 2003, as the same may be amendedand Section 5(b);
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a group comprised solely “group” that includes all or some lesser number of the persons identified as part of the Ramius Group, but does not include any other members who are not currently identified as Ramius Group members as of the date hereof);
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius Group;
(v) otherwise act, alone or in concert with others to (1) make any public statement critical of Actel, its directors or management, other than as contemplated by Section 4(a)(vi)(3) below or (2) control or seek to control the Board, other than through non public communications with the officers and directors of Actelthe Company;
(vi) seek or encourage any person (other than as provided any member of the Ramius Group) to submit nominations in this Agreement, furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or any solicitation or nomination pursuant to Rule 14a-11 under the Exchange Act;
(1) make any public announcement with respect to, proposal for consideration by stockholders at any annual or special meeting of stockholders or (2) make any offer to effect, seek or propose proposal (with or without conditions) with respect to a merger, acquisition, disposition or other business combination involving Actel, other than through non public communications with the officers Ramius Group and directors of Actelthe Company; provided, however, that nothing herein will limit the ability of (1) any member of the Ramius Group, or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, Company or (2) the 2009 Settlement Directors to exercise their rights as members of the Board while serving as members of the Board or (3) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel the Company or other business combination involving Actel and not supported by Mr, ▇▇▇▇▇the Company;
(vii) seek, alone or in concert with others, (1) to call a meeting of shareholders, or (2) representation on the Board, except as specifically contemplated in Section 3(a) and Section 4(b), or (3) the removal of any member of the Board; or
(viiiix) publicly disclose make any request to amend, waive or terminate any provision of this Agreement, other than through non public communications with the officers and directors of the Company that do not trigger any disclosure obligation on the part of any member of the Ramius Group.
(b) Notwithstanding anything contained herein to the contrary, any except as expressly provided in Section 5(b), each member of the Ramius Group, and any Affiliate or Associate of any such member, Group shall be entitled to:
(i) subject to Section 5, vote their shares in favor of the election of the2009 the Settlement Directors Director at the 2010 Annual Meeting Meeting, in favor of the Declassification Proposal and on any other proposal duly brought before the 2010 Annual Meeting, or otherwise vote as each member of the Rarnius Ramius Group determines in their its sole discretion;; and
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor;
(iii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by shareholders at the 2011 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Restated Articles or the Bylaws; and
(iv) In the event a special meeting is called by a shareholder of Actel with respect to the removal of directors, the Ramius Group may (A) cumulate the vote of the shares of Common Stock held by the Ramius Group and vote in favor of the 2009 Settlement Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Directors; provided, however, that if Actel solicits proxies to vote against the removal of all directors, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Directors.
(c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 12b-2 promulgated by the SEC under the Exchange Act.
Appears in 2 contracts
Sources: Agreement (Ramius LLC), Agreement (Extreme Networks Inc)
Standstill Restrictions. (a) Subject to applicable law, including Section 13(d) and (g) Except with the prior written consent of Wang duly authorized by a majority of the Securities Exchange Act Board, excluding the Olivetti Nominees, until the earlier of 1934(i) ninety (90) days after the occurrence of a Modified Early Termination Event or (ii) one hundred eighty (180) days after the date after the third (3rd) anniversary of the date hereof on which all of the Olivetti Nominees on the Board resign from the Board, as amended (the “Exchange Act”), except as permitted pursnnnt to the terms of this Agreement, during the term of this Agreement, the Ramius Group shall Olivetti will not, and shall will cause their each of its Affiliates and Associates (as defined below) under its control or direction not to, in any manner, directly or indirectly:
(i) solicit act in concert with any other person or Group by becoming a member of a 13D Group, other than any 13D Group comprised exclusively of Olivetti and one or more of its Affiliates;
(ii) purchase or otherwise acquire shares of Capital Stock as a result of which, after giving effect to such purchase or acquisition, Olivetti and its Affiliates will beneficially own (as such term is used in the proxy rules determined pursuant to Rule 13d-3 of the Securities and Exchange Commission (1934 ▇▇▇) ▇▇re than 19.9% of the “SEC”)) proxies or consents to vote any securities of Actel, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote any outstanding shares of Common Stock with respect to Stock;
(iii) solicit, initiate, encourage or participate in any matter, "solicitation" of "proxies" or become a “"participant” " in any “contested solicitation” for the "election of directors with respect to Actel contest" (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of all of Actel’s nominees and proposals;
(ii) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated Regulation 14A under the Exchange 1934 Act; disregarding clause (iv) of any Common Stock or other securities issued by ActelRule 14a 1(1)(2) and including an exempt solicitation pursuant to Rule 14a 2(b)(1)); call, if in any such case, immediately after the taking of such action, the Ramius Group would, in the aggregate, collectively beneficially own more than the greater of (i) 14.9% of the then outstanding shares of Common Stock, or (ii) such percentage of the then outstanding shares of Common Stock as is 0.1% less than the amount causing the Ramius Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights Agreement, dated October 17, 2003, as the same may be amended;
(iii) form, join or in any way encourage or participate in a call for, any “group” special meeting of stockholders of Wang (within the meaning of Section 13(d)(3) of the Exchange Act) or take any action with respect to the Common Stock (other than a group comprised solely action by written consent of the Ramius Groupstockholders of Wang);
(iv) deposit ; seek to advise any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement Person with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius Group;
(v) otherwise act, alone or in concert with others to (1) securities of Wang; make any public statement critical in a press release, newspaper advertisement or similar general communication of Actel, its directors how it intends to vote at any meeting of stockholders of Wang (or management, other than as contemplated by Section 4(a)(vi)(3) below or (2) control or seek to control the Board, other than through non public communications with the officers and directors of Actel;
(vi) other than as provided in this Agreement, make any public announcement with respect toto any action by written consent of the stockholders of Wang); request, or offer take any action to effectobtain or retain, seek any list of holders of any securities of Wang; or initiate or propose (with any stockholder proposal or without conditions) a mergerparticipate in or encourage the making of, acquisitionor solicit stockholders of Wang for the approval of, disposition one or other business combination involving Actel, other than through non public communications with the officers and directors of Actelmore stockholder proposals; provided, however, that nothing herein will limit the ability Olivetti shall not be prohibited from receiving communications from a security holder who is engaged in any "solicitation" of (1) "proxies" or who is a "participant" in any member of the Ramius Group, or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, (2) the 2009 Settlement Directors to exercise their rights as members of the Board while serving as members of the Board or (3) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel or other business combination involving Actel and not supported by Mr, ▇▇▇▇▇"election contest";
(vii) seek, alone or in concert with others, (1) to call a meeting of shareholders, or (2) representation on the Board, except as specifically contemplated in Section 3(a) and Section 4(b), or (3) the removal of any member of the Board; or
(viii) publicly disclose any request to amend, waive or terminate any provision of this Agreement.
(b) Notwithstanding anything contained herein to the contrary, any member of the Ramius Group, and any Affiliate or Associate of any such member, shall be entitled to:
(i) subject to Section 5, vote their shares in favor of the election of the2009 Settlement Directors at the 2010 Annual Meeting and on any other proposal duly brought before the 2010 Annual Meeting, or otherwise vote as the Rarnius Group determines in their sole discretion;
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor;
(iii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by shareholders at the 2011 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Restated Articles or the Bylaws; and
(iv) In the event a special meeting is called by a shareholder of Actel with respect to the removal of directors, the Ramius Group may (A) cumulate the vote of the shares of Common Stock held by the Ramius Group and vote in favor of the 2009 Settlement Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Directors; provided, however, that if Actel solicits proxies to vote against the removal of all directors, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Directors.
(c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 promulgated by the SEC under the Exchange Act.
Appears in 1 contract
Sources: Stockholders Agreement (Olivetti Ing C & Co Spa /Adr/)
Standstill Restrictions. (a) Subject Each member of the Ramius Group agrees that, from the date of this Agreement until the date that is the earlier of (x) ten (10) business days prior to applicable law, including Section 13(dthe deadline for the submission of stockholder nominations for the 2011 annual meeting of stockholders (the “2011 Annual Meeting”) and (gy) one year from the date of this Agreement (the “Standstill Period”), neither it nor any of its Affiliates or Associates under its control or direction will, and it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended or the rules or regulations thereunder (the “Exchange Act”), except as permitted pursnnnt to the terms ) of this Agreement, during the term of this Agreement, the Ramius Group shall not, and shall cause their Affiliates and Associates (as defined below) under its control or direction not to, in any manner, directly or indirectly:
(i) solicit (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) proxies or consents to vote any securities of Actel(including, or make, or in any way participate inwithout limitation, any “solicitation” of any “proxy” within the meaning of solicitation or nomination pursuant to Rule 14a-1 promulgated by the SEC 14a-11 under the Exchange Act to vote any shares of Common Stock Act), in each case, with respect to any matter, or become a “participant” in any “contested solicitation” for securities of the election of directors with respect to Actel (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of all of Actel’s nominees and proposalsCompany;
(ii) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) of any Common Stock or other securities issued by Actelthe Company, if in any such case, immediately after the taking of such action, the Ramius Group would, in the aggregate, collectively beneficially own more than the greater of (i) 14.914.99% of the then outstanding shares of Common Stock, or (ii) such percentage of the then outstanding shares of Common Stock as is 0.1% less than the amount causing the Ramius Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights Agreement, dated October 17, 2003, as the same may be amended;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a group comprised solely “group” that includes any Affiliates or Associates of any member of the Ramius Group or all or some lesser number of the persons identified as part of the Ramius Group, but does not include any other members who are not an Affiliate or Associate of any member of the Ramius Group or otherwise currently identified as Ramius Group members as of the date hereof);
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius Group;
(v) otherwise act, alone or in concert with others to (1) make any public statement critical of Actel, its directors or management, other than as contemplated by Section 4(a)(vi)(3) below or (2) control or seek to control the Board, other than through non public communications with the officers and directors of Actelthe Company;
(vi) seek or encourage any person (other than as provided any member of the Ramius Group) to submit nominations in this Agreement, furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or any solicitation or nomination pursuant to Rule 14a-11 under the Exchange Act;
(vii) (1) make any proposal for consideration by stockholders at any meeting of stockholders or action by consent in lieu thereof or (2) make any public announcement proposal with respect to, or offer to effect, seek or propose (with or without conditions) a merger, acquisition, disposition or other business combination involving Actel, other than through non public communications with the officers and directors Company or any of Actelits subsidiaries; provided, however, that nothing herein will limit the ability of (1x) any member of the Ramius Group, or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, (2) the 2009 Settlement Directors to exercise their rights as members of the Board while serving as members of the Board Company or (3y) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel the Company or other business combination involving Actel and not supported by Mr, ▇▇▇▇▇the Company;
(viiviii) seek, alone or in concert with others, (1) to call a meeting of shareholders, or (2) representation on the Board or the removal of any member of the Board, except as specifically contemplated in Section 3(a) and Section 4(b), or (3) the removal of any member of the Board; or
(viiiix) publicly disclose make any request to amend, waive or terminate any provision of this Agreement, other than through non public communications with the officers and directors of the Company that do not trigger any disclosure obligation on the part of any member of the Ramius Group.
(b) Notwithstanding anything contained herein to the contrary, any except as expressly provided in Section 5, each member of the Ramius Group, and any Affiliate or Associate of any such member, Group shall be entitled to:
(i) subject to Section 5, vote their shares in favor of the election of the2009 Settlement Directors at the 2010 Annual Meeting and on any other proposal duly brought before the 2010 Annual Meeting, or otherwise vote on any matter as each member of the Rarnius Ramius Group determines in their its sole discretion;; and
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor;
(iii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by shareholders at the 2011 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Restated Articles or the Bylaws; and
(iv) In the event a special meeting is called by a shareholder of Actel with respect to the removal of directors, the Ramius Group may (A) cumulate the vote of the shares of Common Stock held by the Ramius Group and vote in favor of the 2009 Settlement Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Directors; provided, however, that if Actel solicits proxies to vote against the removal of all directors, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Directors.
(c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 12b-2 promulgated by the SEC under the Exchange Act.
Appears in 1 contract
Sources: Director Nomination Agreement (Aviat Networks, Inc.)
Standstill Restrictions. (a) Subject to applicable law, including Section 13(d) and (g) of the Securities Exchange Act of 1934, Except as amended (the “Exchange Act”), except as otherwise permitted pursnnnt pursuant to the terms of this Agreement, during the term of this Agreement, the Ramius Group shall not, and shall cause their respective Affiliates and Associates (as defined below) under its their control or direction not to, in any manner, directly or indirectly:
(i) solicit (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) proxies or consents to vote any securities of ActelMicrotune, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to vote any shares of Common Stock with respect to any matterthe election or removal of directors, or become a “participant” in any “contested solicitation” for the election or removal of directors with respect to Actel Microtune (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of all of ActelMicrotune’s nominees and proposalsnominees;
(ii) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) of any Common Stock or other securities issued by ActelMicrotune, if in any such case, immediately after the taking of such action, the Ramius Group would, in the aggregate, collectively beneficially own more than the greater of (i) 14.914.99% of the then outstanding shares of Common Stock, or (ii) such percentage of the then outstanding shares of Common Stock as is 0.1% less than the amount causing the Ramius Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights Agreement, dated October 17, 2003, as the same may be amended;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a group comprised solely of the Ramius Group); provided, however, to the extent that the Ramius Group nominates any person(s) for election at the 2011 Annual Meeting in accordance with Section 4(b), nothing herein shall limit the ability of the Ramius Group to form a “group”(within the meaning of Section 13(d)(3) of the Exchange Act) with such person(s) in furtherance of electing the Ramius Group’s nominee(s) at the 2011 Annual Meeting;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius Group;
(v) otherwise act, alone or in concert with others to (1) make any public statement critical of ActelMicrotune, its directors or management; provided, other than however, nothing herein shall limit the ability of the Ramius Group to make any public statement critical of Microtune, its directors or management following the conclusion of the 2011 Annual Meeting; provided further, that if Ramius elects to nominate any person for election as contemplated by Section 4(a)(vi)(3) below a director of the Company at the 2011 Annual Meeting then nothing herein shall limit the ability of the Ramius Group to make any public statement critical of Microtune, its directors or management on and after the date that is 30 days prior to the last date on which a stockholder of the Company may nominate, in accordance with the applicable procedures set forth in the Company's Bylaws, a person for election as a member of the Board at the 2011 Annual Meeting (2the “2011 Pre-Nomination Date”);
(vi) control or seek to control the Board, other than through non public communications with the officers and directors of ActelMicrotune (other than in the event the Company fixes the size of the Board at less than nine (9) members prior to the 2011 Annual Meeting, in which case nothing herein shall prevent the Ramius Group from submitting up to that number of nominations that is permitted in accordance with Section 4(b) hereof) ;
(vivii) seek or encourage any person (other than as provided any member of the Ramius Group) to submit nominations in this Agreement, furtherance of a “contested solicitation” for the election or removal of directors with respect to Microtune;
(1) make any public announcement with respect to, proposal for consideration by stockholders at any annual or special meeting of stockholders or (2) make any offer to effect, seek or propose proposal (with or without conditions) with respect to a merger, acquisition, disposition or other business combination involving Actel, other than through non public communications with the officers Ramius and directors of ActelMicrotune; provided, however, that nothing herein will limit the ability of (1) any member of the Ramius Group, or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, Company or (2) the 2009 Settlement Directors to exercise their rights as members of the Board while serving as members of the Board or (3) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel Microtune or other business combination involving Actel and not supported by Mr, ▇▇▇▇▇Microtune;
(viiix) seek, alone or in concert with others, (1) to call a special meeting of shareholdersstockholders, or (2) representation on the Board, except as specifically contemplated in Section Sections 3(a), (d), (e), (f) and (i) and Section 4(b), or (3) the removal of any member of the Board, other than at the 2011 Annual Meeting as contemplated by Section 4(b); or
(viiix) publicly disclose make any request to amend, waive or terminate any provision of this Agreement, other than through non public communications with the officers and directors of Microtune that do not trigger any disclosure obligation on the part of any member of the Ramius Group.
(b) Notwithstanding anything contained herein in Section 4(a) to the contrary, on and after the 2011 Pre-Nomination Date, the Ramius Group shall not be prohibited from (i) nominating one person for election at the 2011 Annual Meeting in accordance with the Company's procedures set forth in its Bylaws for stockholders to nominate persons for election to the Board, (ii) soliciting proxies with respect to the voting securities of the Company with respect to such nominee (and any additional nominee(s) to the extent permitted by and in accordance with clauses (w), (x), (y) and (z) of this Section 4(b)), or (iii) taking any actions in connection with the nomination of such person (or persons) in connection with the 2011 Annual Meeting and in furtherance of the election of such person (or persons) at the 2011 Annual Meeting, including but not limited to, taking any of the actions described above in Sections 4(a)(i), 4(a)(iii), 4(a)(v), requesting a stockholder list and related information, filing an amendment or amendments to its Schedule 13D regarding the Common Stock of the Company as required by law or taking any other action related to the solicitation of proxies or making any public filings or announcements in furtherance thereof; provided, however, that (w) in the event that either (A) the Ramius Group has not proposed an Alternative First Nominee for consideration by Microtune in accordance with Section 3(i), or (B) Microtune has not consented to nominate an Alternate First Nominee proposed by the Ramius Group in accordance with Section 3(i) for election to the Board at the 2011 Annual Meeting, then the Ramius Group shall be permitted to nominate one additional person for election at the 2011 Annual Meeting in opposition to the First Nominee or any person nominated by the Company in substitution for the First Nominee; (x) in the event that the Company does not nominate the Second Nominee for election to the Board at the 2011 Annual Meeting, then the Ramius Group shall be permitted to nominate one additional person for election at the 2011 Annual Meeting in opposition to the person nominated by the Company in substitution for the Second Nominee; (y) in the event that the Company does not nominate the Third Nominee for election to the Board at the 2011 Annual Meeting or there exists a vacancy in the seat previously held by the Third Nominee, then the Ramius Group shall be permitted to nominate one additional person for election at the 2011 Annual Meeting in opposition to either (i) the person nominated by the Company in substitution for the Third Nominee or (ii) any other Microtune nominee up for election at the 2011 Annual Meeting to the extent that the Company does not nominate a person in substitution for the Third Nominee; and (z) any person nominated by the Ramius Group pursuant to any of the foregoing clauses (w), (x) and (y) shall qualify as “independent” pursuant to NASDAQ listing standards and shall not be an Affiliate or Associate of the Ramius Group. The Company shall provide the Ramius Group written notice of the adoption by the Board of any amendment to the Company’s Bylaws that changes the time period during which, or procedures by which, a stockholder may, in accordance with the applicable procedures set forth in the Company’s Bylaws, nominate a person for election as a member of the Board at an annual meeting of stockholders, within not more than two (2) business days after such amendment (the “Bylaw Amendment Notice”). In the event that any such amendment of the Company’s Bylaws results in a deadline for the nomination of directors that is a date prior to the date of receipt of the Bylaw Amendment Notice by the Ramius Group, then, notwithstanding any other provisions of this Agreement, the Ramius Group shall have ten (10) days from the date of its receipt of the Bylaw Amendment Notice to nominate persons for election as members of the Board at the 2011 Annual Meeting. In the event the Company provides the Ramius Group written notice of any change to the 2011 Proposed Nominees after the nomination deadline in connection with the 2011 Annual Meeting has passed, then the Ramius Group shall have ten (10) days to submit nominations, or substitutions for any existing nomination, in accordance with this Section 4(b).
(c) Subject to Section 5, any member of the Ramius Group, and any Affiliate or Associate of any such member, shall be entitled to:
(i) subject to Section 5, vote their shares in favor of the election of the2009 Settlement Directors at the 2010 Annual Meeting and on any other proposal duly brought before the 2010 Annual Meeting, Meeting or otherwise vote 2011 Annual Meeting as the Rarnius Ramius Group determines in their sole discretion;; and
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, on any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor;
(iii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by shareholders at the 2011 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Restated Articles or the Bylaws; and
(iv) In the event a special meeting is called by a shareholder of Actel with respect to the removal of directors, the Ramius Group may (A) cumulate the vote of the shares of Common Stock held by the Ramius Group and vote in favor of the 2009 Settlement Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Directors; provided, however, that if Actel solicits proxies to vote against the removal of all directors, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Directors.
(cd) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 12b-2 promulgated by the SEC under the Exchange ActAct and shall include all persons or entities that at any time during the term of this Agreement become Affiliates or Associates of any person or entity referred to in this Agreement.
Appears in 1 contract
Sources: Nomination Agreement (Ramius LLC)
Standstill Restrictions. (a) Subject Each member of the Ramius Group agrees that, from the date of this Agreement until the date that is the earlier of (x) ten (10) business days prior to applicable law, including Section 13(dthe deadline for the submission of stockholder nominations for the 2011 annual meeting of stockholders (the “2011 Annual Meeting”) and (gy) one year from the date of this Agreement (the “Standstill Period”), neither it nor any of its Affiliates or Associates under its control or direction will, and it will cause each of its Affiliates and Associates under its control not to, directly or indirectly, in any manner:
(i) engage in any solicitation of proxies or consents or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended or the rules or regulations thereunder (the “Exchange Act”), except as permitted pursnnnt to the terms ) of this Agreement, during the term of this Agreement, the Ramius Group shall not, and shall cause their Affiliates and Associates (as defined below) under its control or direction not to, in any manner, directly or indirectly:
(i) solicit (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) proxies or consents to vote any securities of Actel(including, or make, or in any way participate inwithout limitation, any “solicitation” of any “proxy” within the meaning of solicitation or nomination pursuant to Rule 14a-1 promulgated by the SEC 14a-11 under the Exchange Act to vote any shares of Common Stock Act), in each case, with respect to any matter, or become a “participant” in any “contested solicitation” for securities of the election of directors with respect to Actel (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of all of Actel’s nominees and proposalsCompany;
(ii) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) of any Common Stock or other securities issued by Actelthe Company, if in any such case, immediately after the taking of such action, the Ramius Group would, in the aggregate, collectively beneficially own more than the greater of (i) 14.914.99% of the then outstanding shares of Common Stock, or (ii) such percentage of the then outstanding shares of Common Stock as is 0.1% less than the amount causing the Ramius Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights Agreement, dated October 17, 2003, as the same may be amended;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a group comprised solely “group” that includes any Affiliates or Associates of any member of the Ramius Group or all or some lesser number of the persons identified as part of the Ramius Group, but does not include any other members who are not an Affiliate or Associate of any member of the Ramius Group or otherwise currently identified as Ramius Group members as of the date hereof);
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius Group;
(v) otherwise act, alone or in concert with others to (1) make any public statement critical of Actel, its directors or management, other than as contemplated by Section 4(a)(vi)(3) below or (2) control or seek to control the Board, other than through non public communications with the officers and directors of Actelthe Company;
(vi) seek or encourage any person (other than as provided any member of the Ramius Group) to submit nominations in this Agreement, furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or any solicitation or nomination pursuant to Rule 14a-11 under the Exchange Act;
(1) make any proposal for consideration by stockholders at any meeting of stockholders or action by consent in lieu thereof or (2) make any public announcement proposal with respect to, or offer to effect, seek or propose (with or without conditions) a merger, acquisition, disposition or other business combination involving Actel, other than through non public communications with the officers and directors Company or any of Actelits subsidiaries; provided, however, that nothing herein will limit the ability of (1x) any member of the Ramius Group, or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, (2) the 2009 Settlement Directors to exercise their rights as members of the Board while serving as members of the Board Company or (3y) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel the Company or other business combination involving Actel and not supported by Mr, ▇▇▇▇▇the Company;
(viiviii) seek, alone or in concert with others, (1) to call a meeting of shareholders, or (2) representation on the Board or the removal of any member of the Board, except as specifically contemplated in Section 3(a) and Section 4(b), or (3) the removal of any member of the Board; or
(viiiix) publicly disclose make any request to amend, waive or terminate any provision of this Agreement, other than through non public communications with the officers and directors of the Company that do not trigger any disclosure obligation on the part of any member of the Ramius Group.
(b) Notwithstanding anything contained herein to the contrary, any except as expressly provided in Section 5, each member of the Ramius Group, and any Affiliate or Associate of any such member, Group shall be entitled to:
(i) subject to Section 5, vote their shares in favor of the election of the2009 Settlement Directors at the 2010 Annual Meeting and on any other proposal duly brought before the 2010 Annual Meeting, or otherwise vote on any matter as each member of the Rarnius Ramius Group determines in their its sole discretion;; and
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor;
(iii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by shareholders at the 2011 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Restated Articles or the Bylaws; and
(iv) In the event a special meeting is called by a shareholder of Actel with respect to the removal of directors, the Ramius Group may (A) cumulate the vote of the shares of Common Stock held by the Ramius Group and vote in favor of the 2009 Settlement Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Directors; provided, however, that if Actel solicits proxies to vote against the removal of all directors, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Directors.
(c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 12b-2 promulgated by the SEC under the Exchange Act.
Appears in 1 contract
Standstill Restrictions. (a) Subject to applicable law, including Section 13(d) and (g) of the Securities Exchange Act of 1934, Except as amended (the “Exchange Act”), except as otherwise permitted pursnnnt pursuant to the terms of this Agreement, during the term period from the date of this AgreementAgreement until the earlier of (i) 14 days after Abraxas receives notice from the Clinton Group of a material breach by Abraxas of any obligation hereunder which has not been cured; and (ii) the business day immediately following the 2015 annual meeting of stockholders of Abraxas (the “2015 Annual Meeting”) (such period, the Ramius “Standstill Period”), the Clinton Group shall not, and shall cause their respective Affiliates and Associates (as defined below) under its their control or direction not to, in any manner, directly or indirectly:
(i) solicit (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) proxies or consents to vote any securities of ActelAbraxas, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to vote any shares of Common Stock with respect to any matterthe election or removal of directors, or become a “participant” in any “contested solicitation” for the election or removal of directors with respect to Actel Abraxas (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of all of Actel’s nominees and proposalsAbraxas’ nominees;
(ii) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) of any Common Stock or other securities issued by Actel, if in any such case, immediately after the taking of such action, the Ramius Group would, in the aggregate, collectively beneficially own more than the greater of (i) 14.9% of the then outstanding shares of Common Stock, or (ii) such percentage of the then outstanding shares of Common Stock as is 0.1% less than the amount causing the Ramius Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights Agreement, dated October 17, 2003, as the same may be amended;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a group comprised solely of the Ramius GroupClinton Group and its Affiliates and Associates);
(iviii) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius Clinton Group;
(viv) otherwise act, alone or in concert with others others, to (1) make any public statement critical of ActelAbraxas, its directors or management; provided, other than as however, that nothing in this Agreement to the contrary shall prohibit the Clinton Group from (x) making public statements (including statements contemplated by Section 4(a)(vi)(3Rule 14a-1(1)(2)(iv) below under the Exchange Act), (y) engaging in discussions with other stockholders or (2z) soliciting, or encouraging or participating in the solicitation of, proxies or consents with respect to voting securities of Abraxas, in each case with respect to any transaction that has been publicly announced by Abraxas involving (A) any recapitalization of Abraxas, all or any portion of which requires approval by the holders of Common Stock, (B) any merger, amalgamation, consolidation, share exchange (including any exchange offer or tender offer), recapitalization, or other business combination, in each case as a result of which the holders of Common Stock of Abraxas immediately prior to the consummation of such transaction would cease to own at least a majority of the issued and outstanding shares of common stock of the resulting company (or, if such resulting company is a subsidiary, then the ultimate parent company), (C) an acquisition, disposition or sale of assets or a business by Abraxas where the consideration to be received or paid in such transaction requires approval by the holders of Common Stock or (4) any other transaction as a result of which the holders of Common Stock of Abraxas immediately prior to the consummation of such transaction would cease to own at least a majority of the issued and outstanding shares of common stock of the resulting company (or, if such resulting company is a subsidiary, then the ultimate parent company) (any of the foregoing transactions, an “Extraordinary Transaction”);
(v) control or seek to control the Board, other than through non public communications with the officers and directors of Actel;
(vi) other than as provided seek or encourage any person to submit nominations in this Agreement, furtherance of a “contested solicitation” for the election or removal of directors with respect to Abraxas;
(vii) (A) make any public announcement with respect to, proposal for consideration by stockholders at any annual or special meeting of stockholders or (B) make any offer to effect, seek or propose proposal (with or without conditions) with respect to a merger, acquisition, disposition or other business combination involving Actel, other than through non public communications with the officers Clinton and directors of ActelAbraxas; provided, however, that nothing herein will limit the ability of (1) any member of the Ramius Clinton Group, or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, (2) the 2009 Settlement Directors to exercise their rights as members of the Board while serving as members of the Board or (3) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel or other business combination involving Actel and not supported by Mr, ▇▇▇▇▇;
(vii) seek, alone or in concert with others, (1) to call a meeting of shareholders, or (2) representation on the Board, except as specifically contemplated in Section 3(a) and Section 4(b), or (3) the removal of any member of the BoardAbraxas; or
(viii) publicly disclose make any request to amend, waive or terminate any provision of this Agreement.
(b) Notwithstanding anything contained herein to , other than through non-public communications with the contrary, officers and directors of Abraxas that do not trigger any disclosure obligation on the part of any member of the Ramius Clinton Group, and any Affiliate or Associate of any such member, shall be entitled to:
(i) subject to Section 5, vote their shares in favor of the election of the2009 Settlement Directors at the 2010 Annual Meeting and on any other proposal duly brought before the 2010 Annual Meeting, or otherwise vote as the Rarnius Group determines in their sole discretion;
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor;
(iii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by shareholders at the 2011 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Restated Articles or the Bylaws; and
(iv) In the event a special meeting is called by a shareholder of Actel with respect to the removal of directors, the Ramius Group may (A) cumulate the vote of the shares of Common Stock held by the Ramius Group and vote in favor of the 2009 Settlement Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Directors; provided, however, that if Actel solicits proxies to vote against the removal of all directors, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Directors.
(c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 promulgated by the SEC under the Exchange Act.
Appears in 1 contract
Sources: Director Nomination Agreement (Abraxas Petroleum Corp)
Standstill Restrictions. (a) Subject to applicable law, including Section 13(d) and (g) of the Securities Exchange Act of 1934, Except as amended (the “Exchange Act”), except as otherwise permitted pursnnnt pursuant to the terms of this Agreement, during the term of this Agreement, the Ramius Group shall not, and shall cause their respective Affiliates and Associates (as defined below) under its their control or direction not to, in any manner, directly or indirectly:
(i) solicit (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) proxies or consents to vote any securities of ActelMicrotune, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to vote any shares of Common Stock with respect to any matterthe election or removal of directors, or become a “participant” in any “contested solicitation” for the election or removal of directors with respect to Actel Microtune (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of all of ActelMicrotune’s nominees and proposalsnominees;
(ii) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) of any Common Stock or other securities issued by ActelMicrotune, if in any such case, immediately after the taking of such action, the Ramius Group would, in the aggregate, collectively beneficially own more than the greater of (i) 14.914.99% of the then outstanding shares of Common Stock, or (ii) such percentage of the then outstanding shares of Common Stock as is 0.1% less than the amount causing the Ramius Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights Agreement, dated October 17, 2003, as the same may be amended;
(iii) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a group comprised solely of the Ramius Group); provided, however, to the extent that the Ramius Group nominates any person(s) for election at the 2011 Annual Meeting in accordance with Section 4(b), nothing herein shall limit the ability of the Ramius Group to form a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with such person(s) in furtherance of electing the Ramius Group’s nominee(s) at the 2011 Annual Meeting;
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius Group;
(v) otherwise act, alone or in concert with others to (1) make any public statement critical of ActelMicrotune, its directors or management; provided, other than however, nothing herein shall limit the ability of the Ramius Group to make any public statement critical of Microtune, its directors or management following the conclusion of the 2011 Annual Meeting; provided further, that if Ramius elects to nominate any person for election as contemplated by Section 4(a)(vi)(3) below a director of the Company at the 2011 Annual Meeting then nothing herein shall limit the ability of the Ramius Group to make any public statement critical of Microtune, its directors or management on and after the date that is 30 days prior to the last date on which a stockholder of the Company may nominate, in accordance with the applicable procedures set forth in the Company’s Bylaws, a person for election as a member of the Board at the 2011 Annual Meeting (2the “2011 Pre-Nomination Date”);
(vi) control or seek to control the Board, other than through non public communications with the officers and directors of ActelMicrotune (other than in the event the Company fixes the size of the Board at less than nine (9) members prior to the 2011 Annual Meeting, in which case nothing herein shall prevent the Ramius Group from submitting up to that number of nominations that is permitted in accordance with Section 4(b) hereof) ;
(vivii) seek or encourage any person (other than as provided any member of the Ramius Group) to submit nominations in this Agreement, furtherance of a “contested solicitation” for the election or removal of directors with respect to Microtune;
(1) make any public announcement with respect to, proposal for consideration by stockholders at any annual or special meeting of stockholders or (2) make any offer to effect, seek or propose proposal (with or without conditions) with respect to a merger, acquisition, disposition or other business combination involving Actel, other than through non public communications with the officers Ramius and directors of ActelMicrotune; provided, however, that nothing herein will limit the ability of (1) any member of the Ramius Group, or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, Company or (2) the 2009 Settlement Directors to exercise their rights as members of the Board while serving as members of the Board or (3) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel Microtune or other business combination involving Actel and not supported by Mr, ▇▇▇▇▇Microtune;
(viiix) seek, alone or in concert with others, (1) to call a special meeting of shareholdersstockholders, or (2) representation on the Board, except as specifically contemplated in Section Sections 3(a), (d), (e), (f) and (i) and Section 4(b), or (3) the removal of any member of the Board, other than at the 2011 Annual Meeting as contemplated by Section 4(b); or
(viiix) publicly disclose make any request to amend, waive or terminate any provision of this Agreement, other than through non public communications with the officers and directors of Microtune that do not trigger any disclosure obligation on the part of any member of the Ramius Group.
(b) Notwithstanding anything contained herein in Section 4(a) to the contrary, on and after the 2011 Pre-Nomination Date, the Ramius Group shall not be prohibited from (i) nominating one person for election at the 2011 Annual Meeting in accordance with the Company’s procedures set forth in its Bylaws for stockholders to nominate persons for election to the Board, (ii) soliciting proxies with respect to the voting securities of the Company with respect to such nominee (and any additional nominee(s) to the extent permitted by and in accordance with clauses (w), (x), (y) and (z) of this Section 4(b)), or (iii) taking any actions in connection with the nomination of such person (or persons) in connection with the 2011 Annual Meeting and in furtherance of the election of such person (or persons) at the 2011 Annual Meeting, including but not limited to, taking any of the actions described above in Sections 4(a)(i), 4(a)(iii), 4(a)(v), requesting a stockholder list and related information, filing an amendment or amendments to its Schedule 13D regarding the Common Stock of the Company as required by law or taking any other action related to the solicitation of proxies or making any public filings or announcements in furtherance thereof; provided, however, that (w) in the event that either (A) the Ramius Group has not proposed an Alternative First Nominee for consideration by Microtune in accordance with Section 3(i), or (B) Microtune has not consented to nominate an Alternate First Nominee proposed by the Ramius Group in accordance with Section 3(i) for election to the Board at the 2011 Annual Meeting, then the Ramius Group shall be permitted to nominate one additional person for election at the 2011 Annual Meeting in opposition to the First Nominee or any person nominated by the Company in substitution for the First Nominee; (x) in the event that the Company does not nominate the Second Nominee for election to the Board at the 2011 Annual Meeting, then the Ramius Group shall be permitted to nominate one additional person for election at the 2011 Annual Meeting in opposition to the person nominated by the Company in substitution for the Second Nominee; (y) in the event that the Company does not nominate the Third Nominee for election to the Board at the 2011 Annual Meeting or there exists a vacancy in the seat previously held by the Third Nominee, then the Ramius Group shall be permitted to nominate one additional person for election at the 2011 Annual Meeting in opposition to either (i) the person nominated by the Company in substitution for the Third Nominee or (ii) any other Microtune nominee up for election at the 2011 Annual Meeting to the extent that the Company does not nominate a person in substitution for the Third Nominee; and (z) any person nominated by the Ramius Group pursuant to any of the foregoing clauses (w), (x) and (y) shall qualify as “independent” pursuant to NASDAQ listing standards and shall not be an Affiliate or Associate of the Ramius Group. The Company shall provide the Ramius Group written notice of the adoption by the Board of any amendment to the Company’s Bylaws that changes the time period during which, or procedures by which, a stockholder may, in accordance with the applicable procedures set forth in the Company’s Bylaws, nominate a person for election as a member of the Board at an annual meeting of stockholders, within not more than two (2) business days after such amendment (the “Bylaw Amendment Notice”). In the event that any such amendment of the Company’s Bylaws results in a deadline for the nomination of directors that is a date prior to the date of receipt of the Bylaw Amendment Notice by the Ramius Group, then, notwithstanding any other provisions of this Agreement, the Ramius Group shall have ten (10) days from the date of its receipt of the Bylaw Amendment Notice to nominate persons for election as members of the Board at the 2011 Annual Meeting. In the event the Company provides the Ramius Group written notice of any change to the 2011 Proposed Nominees after the nomination deadline in connection with the 2011 Annual Meeting has passed, then the Ramius Group shall have ten (10) days to submit nominations, or substitutions for any existing nomination, in accordance with this Section 4(b).
(c) Subject to Section 5, any member of the Ramius Group, and any Affiliate or Associate of any such member, shall be entitled to:
(i) subject to Section 5, vote their shares in favor of the election of the2009 Settlement Directors at the 2010 Annual Meeting and on any other proposal duly brought before the 2010 Annual Meeting, Meeting or otherwise vote 2011 Annual Meeting as the Rarnius Ramius Group determines in their sole discretion;; and
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, on any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor;
(iii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by shareholders at the 2011 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Restated Articles or the Bylaws; and
(iv) In the event a special meeting is called by a shareholder of Actel with respect to the removal of directors, the Ramius Group may (A) cumulate the vote of the shares of Common Stock held by the Ramius Group and vote in favor of the 2009 Settlement Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Directors; provided, however, that if Actel solicits proxies to vote against the removal of all directors, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Directors.
(cd) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 12b-2 promulgated by the SEC under the Exchange ActAct and shall include all persons or entities that at any time during the term of this Agreement become Affiliates or Associates of any person or entity referred to in this Agreement.
Appears in 1 contract
Standstill Restrictions. (a) Subject to applicable law, including Section 13(d) and (g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), except as permitted pursnnnt pursuant to the terms of this Agreement, during the term of this Agreement, the Ramius ▇▇▇▇▇▇▇ Group shall not, and shall cause their Affiliates respective principals, directors, stockholders, officers, employees, agents and Associates (as defined below) under its control or direction affiliates not to, in any manner, directly or indirectly:
(ia) solicit (as such term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) proxies proxies, or consents conduct any nonbinding referendum with respect to vote any securities of ActelCommon Stock, or make, or in any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote any shares of Common Stock with respect to any matter, or become a “participant” in any “contested solicitation” for the election of directors with respect to Actel Epicor (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder), other than solicitations or acting as a participant in support of all of ActelEpicor’s nominees and proposals;
(iib) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership Ownership (as determined under Rule 13d-3 promulgated under defined in Section 203 of the Exchange ActDelaware General Corporation Law (“DGCL”)) of any Common Stock or other securities issued by ActelEpicor, if in any such case, immediately after the taking of such action, one or more members of the Ramius ▇▇▇▇▇▇▇ Group would, in the aggregate, collectively beneficially own Own (as defined in Section 203 of the DGCL) more than the greater of (i) 14.914.99% of the then outstanding shares of Common Stock, or (ii) such percentage ; provided that the ▇▇▇▇▇▇▇ Group shall be permitted to acquire in the aggregate up to $100 million principal amount of the then outstanding Convertible Notes and any shares of Common Stock issuable upon the conversion or settlement of such Convertible Notes shall be excluded from the calculation of the number of shares of Common Stock Owned (as is 0.1% less than defined in Section 203 of the amount causing DGCL) by the Ramius ▇▇▇▇▇▇▇ Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights for purposes of this Section 4(b) and Section 7 of this Agreement, dated October 17but any shares of Common Stock actually issued upon conversion or settlement of the Convertible Notes pursuant to an election made by any member of the ▇▇▇▇▇▇▇ Group shall not be so excluded (such percentage of shares of Common Stock Owned by the ▇▇▇▇▇▇▇ Group excluding shares of Common Stock issuable upon conversion or settlement of such Convertible Notes, 2003but not excluding shares of Common Stock actually issued upon conversion or settlement of the Convertible Notes pursuant to an election made by any member of the ▇▇▇▇▇▇▇ Group, as the same may be amended“Maximum Percentage”);
(iiic) make or be the proponent of any stockholder proposal, whether pursuant to Rule 14a-8 of the Exchange Act or otherwise;
(d) form, join or in any way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a group comprised solely of the Ramius ▇▇▇▇▇▇▇ Group);
(ive) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius ▇▇▇▇▇▇▇ Group;
(vf) otherwise act, alone or in concert with others others, to (1i) make any public statement critical of ActelEpicor, its directors or management, other than as contemplated by Section 4(a)(vi)(3) below or (2ii) control or seek to control the Board, other than through non non-public communications with the officers and directors of Actel;
Epicor or (viiii) other than as provided in this Agreement, make any public announcement with respect toeffect, or offer seek to effect, seek or propose (with or without conditions) a merger, acquisition, disposition acquisition or other business combination involving Actel, Epicor other than through non non-public communications with the officers and directors of ActelEpicor; providedprovided that, howeversubject to the terms of this Agreement, that nothing herein will limit the ability of (1) any member of the Ramius Group, or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, (2) the 2009 Settlement Directors to exercise their rights as members of the Board while serving as members of the Board or (3) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel or other business combination involving Actel and not supported by Mr, ▇▇▇▇▇;▇▇ Group and its respective principals, directors, stockholders, officers, employees, agents and affiliates, may have non-public communications with third parties regarding the ▇▇▇▇▇▇▇ Group’s current investment in Epicor.
(viig) seek, alone or in concert with others, (1) to call a meeting of shareholders, or (2i) representation on the Board, except as specifically contemplated in Section 3(a), Section 3(b), Section 3(c), Section 3(d) and Section 4(b), 3(e) or (3ii) the removal of any member of the Board; or;
(viiih) make any proposal regarding any of the foregoing;
(i) publicly disclose any request to amend, waive or terminate any provision of this Agreement.; or
(bj) Notwithstanding anything contained herein take or seek to the contrarytake, or cause or seek to cause others to take, directly or indirectly, any member action inconsistent with any of the Ramius Group, and any Affiliate or Associate of any such member, shall be entitled to:
(i) subject to Section 5, vote their shares in favor of the election of the2009 Settlement Directors at the 2010 Annual Meeting and on any other proposal duly brought before the 2010 Annual Meeting, or otherwise vote as the Rarnius Group determines in their sole discretion;
(ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of the Company (other than the election of directors) and the reasons therefor;
(iii) propose a slate of nominees for election as directors and/or one or more proposal(s) for consideration or approval by shareholders at the 2011 Annual Meeting in order to comply with the advance notice provisions or other requirements of the Restated Articles or the Bylaws; and
(iv) In the event a special meeting is called by a shareholder of Actel with respect to the removal of directors, the Ramius Group may (A) cumulate the vote of the shares of Common Stock held by the Ramius Group and vote in favor of the 2009 Settlement Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Directors; provided, however, that if Actel solicits proxies to vote against the removal of all directors, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Directorsforegoing.
(c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 promulgated by the SEC under the Exchange Act.
Appears in 1 contract
Sources: Agreement (Epicor Software Corp)
Standstill Restrictions. Until the earlier of (a) Subject to applicable law, including Section 13(dthe time that the Investor’s Ownership Percentage is less than five percent (5%) and (gb) the third anniversary of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), except as permitted pursnnnt to the terms of this Agreement, during the term of this Agreementdate hereof, the Ramius Group Investor shall not, and shall cause their its Affiliates and Associates (as defined belowincluding commonly controlled or managed investment funds) under its control or direction not to, without the prior consent of the Board, (i) directly or indirectly acquire, agree to acquire, or offer to acquire, beneficial ownership of any equity or debt securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities representing in the aggregate more than one percent (1%) of the total voting power of the Company’s outstanding securities, in addition to the Series A Preferred Stock, Common Stock acquired upon conversion of the Series A Preferred Stock, and any shares paid as dividends thereon, (ii) make, or in any mannerway participate or engage in, directly or indirectly:
(i) solicit , any “solicitation” of “proxies” to vote (as such term is terms are used in the proxy rules of the Securities and Exchange Commission (the “SEC”Commission)) proxies or consents to vote any securities of Actel, or make, seek to advise or in influence any way participate in, any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act to vote any shares of Common Stock person with respect to the voting of, any matter, or become a “participant” voting securities of the Company (other than in any “contested solicitation” for connection with the election of directors with respect to Actel the Series A Director (as such terms are defined or used in the Exchange Act and the rules promulgated thereunderSeries A Certificate of Designation)), other than solicitations or acting as a participant in support of all of Actel’s nominees and proposals;
(iiiii) purchase or cause to be purchased bring any action or otherwise acquire act to contest the validity of the restrictions set forth in this Section 14, or agree to acquire beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act) of any Common Stock or other securities issued by Actel, if in any such case, immediately after the taking seek a release of such action, the Ramius Group would, in the aggregate, collectively beneficially own more than the greater of (i) 14.9% of the then outstanding shares of Common Stockrestrictions, or (ii) such percentage of the then outstanding shares of Common Stock as is 0.1% less than the amount causing the Ramius Group to become an “Acquiring Person” under the Company’s Preferred Stock Rights Agreement, dated October 17, 2003, as the same may be amended;
(iiiiv) form, join or in any way participate in any a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Common Stock (other than a Company except for any group comprised solely of the Ramius Group);
(iv) deposit any Common Stock in any voting trust or subject any Common Stock to any arrangement or agreement with respect to the voting of any Common Stock, other than any such voting trust, arrangement or agreement solely among the Ramius Group;
(v) otherwise act, alone or in concert with others to (1) make any public statement critical of Actel, Investor and its directors or management, other than as contemplated by Section 4(a)(vi)(3) below or (2) control or seek to control the Board, other than through non public communications with the officers and directors of Actel;
(vi) other than as provided in this Agreement, make any public announcement with respect to, or offer to effect, seek or propose (with or without conditions) a merger, acquisition, disposition or other business combination involving Actel, other than through non public communications with the officers and directors of ActelAffiliates; provided, however, that nothing herein will limit the foregoing shall not restrict the ability of (1) any member directors appointed or elected to the Board pursuant to the terms of Section 8 of the Ramius Group, Series A Certificate of Designation from exercising his or its respective Affiliates and Associates, except as otherwise provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the stockholders of the Company, (2) the 2009 Settlement Directors to exercise their rights as members of the Board while serving as members of the Board or (3) the Ramius Group to announce its opposition to any Board approved proposals related to a merger, acquisition, disposition of all or substantially all of the assets of Actel or other business combination involving Actel and not supported by Mr, ▇▇▇▇▇;
(vii) seek, alone or in concert with others, (1) to call a meeting of shareholders, or (2) representation on the Board, except as specifically contemplated in Section 3(a) and Section 4(b), or (3) the removal of any member of the Board; or
(viii) publicly disclose any request to amend, waive or terminate any provision her fiduciary duties. The foregoing provisions of this Agreement.
(b) Notwithstanding anything contained herein to the contrary, any member Section 14 will terminate and will be of the Ramius Group, and any Affiliate no further force or Associate of any such member, shall be entitled toeffect if:
(i) subject to Section 5the Company or any of its subsidiaries makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy, vote their shares in favor reorganization, arrangement, insolvency, readjustment of the election debt, dissolution or liquidation law of the2009 Settlement Directors at the 2010 Annual Meeting and on any other proposal duly brought before the 2010 Annual Meeting, or otherwise vote as the Rarnius Group determines in their sole discretionjurisdiction;
(ii) disclose, publicly any such petition is filed or otherwise, how it intends to vote or act with respect to any securities of the Company, any stockholder proposal or other matter to be voted on by the stockholders of such proceeding is commenced against the Company or any of its subsidiaries and either (other than A) the election of directorsCompany or such subsidiary by any act indicates its approval thereof, consent thereto or acquiescence therein or (B) and the reasons therefor;such petition, application or proceeding is not dismissed within 30 days; or
(iii) propose a slate of nominees for election as directors and/or one third party publicly announces or publicly makes an unsolicited offer to enter into a business combination with, or acquire more proposal(s) for consideration or approval by shareholders at the 2011 Annual Meeting in order to comply with the advance notice provisions or other requirements than 10% of the Restated Articles equity securities or the Bylaws; and
(iv) In the event a special meeting is called by a shareholder of Actel with respect to the removal of directorsassets of, the Ramius Group may (A) cumulate the vote Company or of the shares of Common Stock held by the Ramius Group and vote in favor of the 2009 Settlement Directors and (B) solicit proxies to vote against the removal of the 2009 Settlement Directors; provided, however, that if Actel solicits proxies to vote against the removal of all directors, the Ramius Group may only solicit proxies to vote against the removal of all directors and not just the 2009 Settlement Directorsany subsidiary thereof.
(c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule I 2b-2 promulgated by the SEC under the Exchange Act.
Appears in 1 contract