Standstill Restrictions. (a) From and after the Initial Closing Date until the later of (x) the three (3) year anniversary of the Initial Closing Date and (y) the one (1) year anniversary of the date on which the Holder shall cease to own at least 50% of the Shares (the “Standstill Period”), each Stockholder shall not, and such Stockholder shall cause its controlled Affiliates and Investor Parent and each of its controlled Affiliates not to, directly or indirectly, alone or in concert with any other person, except as expressly set forth in this Section 7.1 (and excluding Securities beneficially owned by third parties unaffiliated to the Holder which are managed by Investor Parent and its controlled Affiliates; provided, that such persons with investment authority for such Securities do not receive any Confidential Information (as defined in the Investment Agreement) from the Holder): (1) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Securities, other than (x) the Registrable Securities and (y) the Additional Shares; (2) publicly propose, offer or participate in any effort to acquire the Company or any of its Subsidiaries or any assets or operations of the Company or any of its Subsidiaries; (3) knowingly induce or attempt to induce any third party to propose, offer or participate in any effort to acquire beneficial ownership of voting Securities (other than the Shares as and to the extent permitted in accordance with ARTICLE III); (4) publicly propose, offer or participate in any tender offer, exchange offer, merger, acquisition, share exchange or other business combination or Change of Control transaction involving the Company or any of its subsidiaries, or any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving the Company, any of its subsidiaries or any material portion of their businesses; (5) seek to call, request the call of, or call a special meeting of the stockholders of the Company, or make or seek to make a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company or in connection with any action by consent in lieu of a meeting, or make a request for a list of the Company’s stockholders, or seek election to the Board or seek to place a representative on the Board, or seek the removal of any director from the Board, other than the Holder Designees; (6) solicit proxies, designations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to voting Securities, 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 (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any voting Securities with respect to any matter, or become a participant in any contested solicitation for the election of directors with respect to the Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder); (7) make or issue or cause to be made or issued any public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) (A) in express support of any solicitation described in clause (6) above (other than solicitations on behalf of the Board) or (B) in express support of any matter described in clauses (4) or (5) above; (8) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting Securities, or deposit any voting Securities in a voting trust or similar arrangement, or subject any voting Securities to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any voting Securities (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with other Stockholders or one or more Affiliates (other than portfolio or operating companies) of a Stockholder with respect to the Shares or other voting Securities acquired in compliance with the Investment Agreement and this Agreement or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement (it being understood that the holding by persons or entities of voting Securities in accounts or through funds not managed or controlled by Investor Parent or any of its controlled Affiliates shall not give rise to a violation of this clause (8) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by Investor Parent or any of its controlled Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Stockholders within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting Securities; provided there does not exist as between such persons or entities, on the one hand, and Investor Parent or any of its controlled Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this Section 7.1); (9) seek in any manner to obtain any amendment, redemption, termination or waiver of any stockholder rights plan or similar agreement; or (10) publicly disclose, or knowingly cause the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of this Section 7.1 or otherwise bring any action or otherwise act to contest the validity or enforceability of this Section 7.1. For purposes of this Section 7.1, a person shall not be a controlled Affiliate of a Stockholder or Investor Parent, respectively, unless the Stockholder or Investor Parent or their respective controlled Affiliates, as the case may be, has the power to vote the majority of the outstanding equity securities of such person or otherwise has the power to control the management and policies of such person (and provided that such person does not receive any Confidential Information (as defined in the Investment Agreement) from the Holder). (b) This Section 7.1 shall not, in any way, prevent, restrict, encumber or limit (i) the Stockholders and their Affiliates from (A) exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement and the Investment Agreement in accordance with the terms hereof and thereof, (B) if the Board has previously authorized or approved the solicitation by the Company of bids or indications of interest in the potential acquisition of the Company or any of its assets or operations by auction or other sales process (each, a “Sales Process”), participating in such Sales Process and, if selected as the successful bidder by the Company, completing the acquisition contemplated thereby, provided that the Stockholder and its Affiliates shall otherwise remain subject to the provisions of this Section 7.1 in all respects during and following the completion of the Sales Process, or (C) engaging in confidential discussions with the Board or any of its members regarding any of the matters described in this Section 7.1, provided that (x) the Stockholder and its Affiliates will not publicly disclose the existence of such discussions and (y) such discussions would not reasonably be expected to require either party to make any public disclosure unless approved by the Board, or (ii) any Holder Designee then serving as a director from acting as a director or exercising and performing his or her duties (fiduciary and otherwise) as a director in accordance with the Company’s Certificate of Incorporation and By-Laws, all codes and policies of the Company and all laws, rules, regulations and codes of practice, in each case as may be applicable and in effect from time to time. (c) Notwithstanding anything to the contrary in this Agreement, this Section 7.1 shall be of no further force and effect with respect to a Holder in the event that (i) the Company shall enter into any agreement with a third party (including the Holder) providing for (A) a merger, (B) a tender or exchange offer for at least a majority of then outstanding Securities of the Company, (C) a sale of at least a majority of the consolidated assets of the Company and its Subsidiaries (including equity securities of Subsidiaries) or equity securities of such other party in a single transaction or series of related transactions, (D) a recapitalization or other transaction involving the Company that results in one person or group acquiring beneficial ownership of at least a majority of the Securities of the Company when aggregated with other Securities held by such person or group or (E) any other single transaction or series of related transactions that results in a Change of Control of the Company (any of the transactions referred to in the foregoing clauses (A) through (E), a “Change of Control Transaction”) or (ii) the Company shall publicly disclose that it is in discussions or negotiations with a third party with respect to a Change of Control Transaction.
Appears in 2 contracts
Sources: Investor Rights Agreement (AlTi Global, Inc.), Investor Rights Agreement (AlTi Global, Inc.)
Standstill Restrictions. (a) From and after the Initial Closing Date until the later of (x) the three (3) year anniversary of the Initial Closing Date and (y) the one (1) year anniversary of the date on which the Holder shall cease to own at least 50% of the Shares Class A Common Stock acquired by the Holder at Closing (the “Standstill Period”), each Stockholder shall not, and such Stockholder shall cause its controlled Affiliates and Investor Allianz Parent and each of its controlled Affiliates not to, directly or indirectly, alone or in concert with any other person, except as expressly set forth in this Section 7.1 (and excluding (i) Securities beneficially owned by third parties unaffiliated to the Holder which are managed by Investor Allianz Parent and its controlled AffiliatesAffiliates for the account of third parties in the ordinary course of business and (ii) Securities managed by third parties held in investment funds in which Allianz Parent and its controlled Affiliates are invested but without investment authority; provided, that that, in the case of clause (i) and (ii), such persons with investment authority for such Securities do not receive any Confidential Information (as defined in the Investment Agreement) from the Holder)):
(1) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Securities, other than (x) the Registrable Securities and Securities, (y) the Additional SharesShares and (z) shares of Series B Preferred Stock issuable upon the conversion of Series A Preferred Stock;
(2) publicly propose, offer or participate in any effort to acquire the Company or any of its Subsidiaries or any assets or operations of the Company or any of its Subsidiaries;
(3) knowingly induce or attempt to induce any third party to propose, offer or participate in any effort to acquire beneficial ownership of voting Securities (other than the Shares as and to the extent permitted in accordance with ARTICLE III);
(4) publicly propose, offer or participate in any tender offer, exchange offer, merger, acquisition, share exchange or other business combination or Change of Control transaction involving the Company or any of its subsidiaries, or any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving the Company, any of its subsidiaries or any material portion of their businesses;
(5) seek to call, request the call of, or call a special meeting of the stockholders of the Company, or make or seek to make a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company or in connection with any action by consent in lieu of a meeting, or make a request for a list of the Company’s stockholders, or seek election to the Board or seek to place a representative on the BoardBoard (other than as expressly set forth in Section 2.1), or seek the removal of any director from the Board, other than the Holder Designees;
(6) solicit proxies, designations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to voting Securities, 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 (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any voting Securities with respect to any matter, or become a participant in any contested solicitation for the election of directors with respect to the Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder);
(7) make or issue or cause to be made or issued any public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) (A) in express support of any solicitation described in clause (6) above (other than solicitations on behalf of the Board) or (B) in express support of any matter described in clauses (4) or (5) above;
(8) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting Securities, or deposit any voting Securities in a voting trust or similar arrangement, or subject any voting Securities to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any voting Securities (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with other Stockholders or one or more Affiliates (other than portfolio or operating companies) of a Stockholder with respect to the Shares or other voting Securities acquired in compliance with the Investment Agreement and this Agreement or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement (it being understood that the holding by persons or entities of voting Securities in accounts or through funds not managed or controlled by Investor Allianz Parent or any of its controlled Affiliates shall not give rise to a violation of this clause (8) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by Investor Allianz Parent or any of its controlled Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Stockholders within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting Securities; provided there does not exist as between such persons or entities, on the one hand, and Investor Allianz Parent or any of its controlled Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this Section 7.1);
(9) seek in any manner to obtain any amendment, redemption, termination or waiver of any stockholder rights plan or similar agreement; or
(10) publicly disclose, or knowingly cause the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of this Section 7.1 or otherwise bring any action or otherwise act to contest the validity or enforceability of this Section 7.1. For purposes of this Section 7.1, a person shall not be a controlled Affiliate of a Stockholder or Investor Parent, respectively, unless the Stockholder or Investor Parent or their respective controlled Affiliates, as the case may be, has the power to vote the majority of the outstanding equity securities of such person or otherwise has the power to control the management and policies of such person (and provided that such person does not receive any Confidential Information (as defined in the Investment Agreement) from the Holder).
(b) This Section 7.1 shall not, in any way, prevent, restrict, encumber or limit (i) the Stockholders and their Affiliates from (A) exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement and the Investment Agreement in accordance with the terms hereof and thereofhereof, (B) if the Board has previously authorized or approved the solicitation by the Company of bids or indications of interest in the potential acquisition of the Company or any of its assets or operations by auction or other sales process (each, a “Sales Process”), participating in such Sales Process and, if selected as the successful bidder by the Company, completing the acquisition contemplated thereby, provided that the Stockholder and its Affiliates shall otherwise remain subject to the provisions of this Section 7.1 in all respects during and following the completion of the Sales Process, or (C) engaging in confidential discussions with the Board or any of its members regarding any of the matters described in this Section 7.1, provided that (x) the Stockholder and its Affiliates will not publicly disclose the existence of such discussions and (y) such discussions would not reasonably be expected to require either party to make any public disclosure unless approved by the Boarddisclosure, or (ii) any Holder Designee then serving as a director from acting as a director or exercising and performing his or her duties (fiduciary and otherwise) as a director in accordance with the Company’s Certificate of Incorporation and By-Laws, all codes and policies of the Company and all laws, rules, regulations and codes of practice, in each case as may be applicable and in effect from time to time.
(c) Notwithstanding anything to the contrary in this Agreement, this Section 7.1 shall be of no further force and effect with respect to a Holder in the event that (i) the Company shall enter into any agreement with a third party (including the Holder) providing for (A) a merger, (B) a tender or exchange offer for at least a majority of then outstanding Securities of the Company, (C) a sale of at least a majority of the consolidated assets of the Company and its Subsidiaries (including equity securities of Subsidiaries) or equity securities of such other party in a single transaction or series of related transactions, (D) a recapitalization or other transaction involving the Company that results in one person or group acquiring beneficial ownership of at least a majority of the Securities of the Company when aggregated with other Securities held by such person or group or (E) any other single transaction or series of related transactions that results in a Change of Control of the Company (any of the transactions referred to in the foregoing clauses (A) through (E), a “Change of Control Transaction”) or (ii) the Company shall publicly disclose that it is in discussions or negotiations with a third party with respect to a Change of Control Transaction.
Appears in 2 contracts
Sources: Investor Rights Agreement (AlTi Global, Inc.), Investor Rights Agreement (AlTi Global, Inc.)
Standstill Restrictions. (a) From During the period commencing on the date of this Agreement and terminating on the earlier of (i) the first day after the Initial Closing Date until Deadline and (ii) the later failure of the Nominating and Governance Committee to confirm by the date specified in the last sentence of Section 2.2 that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ will be on the slate of directors nominated by the Board of Directors for election at the 2015 annual meeting of shareholders, the ▇▇▇▇▇▇▇▇ Group covenants and agrees that it shall not, and shall not permit any of its Affiliates to, either individually or as part of a Group, directly or indirectly:
(i) acquire or obtain any economic interest in, any right to direct the voting or disposition of or any other right with respect to, the Common Stock of the Company (directly or by means of any Derivative Securities) (except (x) to the three (3) year anniversary extent issued by the Company in respect of the Initial Closing Date its shares of capital stock to all existing shareholders and (y) the one (1) year anniversary of the date on which the Holder shall cease to own at least 50% of the Shares (the “Standstill Period”), each Stockholder shall not, and such Stockholder shall cause its controlled Affiliates and Investor Parent and each of its controlled Affiliates not to, directly or indirectly, alone or in concert with any other person, except as expressly set forth in this Section 7.1 (and excluding Securities beneficially owned by third parties unaffiliated to the Holder which are managed by Investor Parent and its controlled Affiliates; provided, that such persons with investment authority for such Securities do not receive any Confidential Information (as defined in the Investment Agreement) from the Holder):
(1) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Securities, other than (x) the Registrable Securities and (y) the Additional Shares;
(2) publicly propose, offer or participate in any effort to acquire the Company or any of its Subsidiaries or any assets or operations of the Company or any of its Subsidiaries;
(3) knowingly induce or attempt to induce any third party to propose, offer or participate in any effort to acquire beneficial ownership of voting Securities (other than the Shares as and to the extent permitted in accordance with ARTICLE III);
(4) publicly propose, offer or participate in any tender offer, exchange offer, merger, acquisition, share exchange or other business combination or Change of Control transaction involving the Company or any of its subsidiaries, or any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving the Company, any of its subsidiaries or any material portion of their businesses;
(5) seek to call, request the call of, or call a special meeting of the stockholders of the Company, or make or seek to make a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company or in connection with any action by consent in lieu of a meeting, or make a request for a list of the Company’s stockholders, or seek election to the Board or seek to place a representative on the Board, or seek the removal of any director from the Board, other than the Holder Designees;
(6) solicit proxies, designations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to voting Securities, or make or in any way participate in any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated acquisition by the SEC under the Exchange Act (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any voting Securities with respect to any matter▇▇▇▇▇▇▇▇ Group, or become a participant in any contested solicitation for the election of directors with respect to the Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder);
(7) make or issue or cause to be made or issued any public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) (A) in express support of any solicitation described in clause (6) above (other than solicitations on behalf of the Board) or (B) in express support of any matter described in clauses (4) or (5) above;
(8) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting Securities, or deposit any voting Securities in a voting trust or similar arrangement, or subject any voting Securities to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any voting Securities (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with other Stockholders or one or more Affiliates (other than portfolio or operating companies) of a Stockholder with respect to the Shares or other voting Securities acquired in compliance with applicable securities laws, of additional shares of (or economic interest in) Common Stock following the Investment Agreement and this Agreement or to date hereof, provided that at no time shall the extent such a group may be deemed to result with the Company ▇▇▇▇▇▇▇▇ Group or any of its Affiliates as a result collectively beneficially own (or have an economic interest) in excess of this Agreement (it being understood that the holding by persons Permitted Amount)), in each case, whether or entities of voting Securities in accounts or through funds not managed or controlled by Investor Parent or any of its controlled Affiliates shall not give rise to a violation of this clause (8) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by Investor Parent or any of its controlled Affiliates and, in their capacity as such, are or foregoing may be deemed to be members acquired or obtained immediately or only after the passage of a “group” with time or upon the Stockholders satisfaction of one or more conditions (whether or not within the meaning control of Section 13(d)(3such party) of the Exchange Act with respect pursuant to the voting Securities; provided there does not exist as between such persons or entities, on the one hand, and Investor Parent or any of its controlled Affiliates, on the other hand, any agreement, arrangement or understanding (whether or not in writing) or otherwise and whether or not any of the foregoing would give rise to “beneficial ownership” (as such term is used in Rule 13d-3 of the Exchange Act), and, in each case, whether or not any of the foregoing is acquired or obtained by means of borrowing of securities, operation of any Derivative Security or otherwise. For the purposes of this Agreement, the term “Derivative Securities” means, with respect to any action that would otherwise be prohibited by this Section 7.1);
(9) seek in any manner to obtain any amendment, redemption, termination or waiver of any stockholder rights plan or similar agreement; or
(10) publicly disclose, or knowingly cause the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) ofPerson, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of this Section 7.1 or otherwise bring any action or otherwise act to contest the validity or enforceability of this Section 7.1. For purposes of this Section 7.1, a person shall not be a controlled Affiliate of a Stockholder or Investor Parent, respectively, unless the Stockholder or Investor Parent or their respective controlled Affiliates, as the case may be, has the power to vote the majority of the outstanding equity securities of such person or otherwise has the power to control the management and policies of such person (and provided that such person does not receive any Confidential Information (as defined in the Investment Agreement) from the Holder).
(b) This Section 7.1 shall not, in any way, prevent, restrict, encumber or limit (i) the Stockholders and their Affiliates from (A) exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement and the Investment Agreement in accordance with the terms hereof and thereofoptions, (B) if the Board has previously authorized or approved the solicitation by the Company of bids or indications of interest in the potential acquisition of the Company or any of its assets or operations by auction warrants or other sales process (each, a “Sales Process”), participating in such Sales Process and, if selected as securities convertible into or exchangeable for the successful bidder by the Company, completing the acquisition contemplated thereby, provided that the Stockholder and its Affiliates shall otherwise remain subject to the provisions of this Section 7.1 in all respects during and following the completion of the Sales Process, or (C) engaging in confidential discussions with the Board or any of its members regarding any of the matters described in this Section 7.1, provided that (x) the Stockholder and its Affiliates will not publicly disclose the existence of such discussions and (y) such discussions would not reasonably be expected to require either party to make any public disclosure unless approved by the Board, or (ii) any Holder Designee then serving as a director from acting as a director or exercising and performing his or her duties (fiduciary and otherwise) as a director in accordance with the Company’s Certificate of Incorporation and By-Laws, all codes and policies of the Company and all laws, rules, regulations and codes of practice, in each case as may be applicable and in effect from time to time.
(c) Notwithstanding anything to the contrary in this Agreement, this Section 7.1 shall be of no further force and effect with respect to a Holder in the event that (i) the Company shall enter into any agreement with a third party (including the Holder) providing for (A) a merger, (B) a tender or exchange offer for at least a majority of then outstanding Securities Common Stock of the Company, (C) a sale of at least a majority or any obligations measured by the price or value of the consolidated assets Common Stock of the Company and its Subsidiaries (Company, including equity securities of Subsidiaries) or equity securities of such other party in a single transaction or series of related transactions, (D) a recapitalization without limitation any swaps or other transaction involving the Company that results in one person or group acquiring beneficial ownership of at least a majority of the Securities of the Company when aggregated with other Securities held by such person or group or (E) any other single transaction or series of related transactions that results in a Change of Control of the Company (any of the transactions referred to in the foregoing clauses (A) through (E), a “Change of Control Transaction”) or (ii) the Company shall publicly disclose that it is in discussions or negotiations with a third party with respect to a Change of Control Transaction.derivative arrangements;
Appears in 2 contracts
Sources: Agreement (Tredegar Corp), Shareholder Agreement (Gottwald John D)
Standstill Restrictions. (a) From During the term of this Agreement, Reliance and after the Initial Closing Date until the later of (x) the three (3) year anniversary of the Initial Closing Date RIC covenant and (y) the one (1) year anniversary of the date on which the Holder shall cease to own at least 50% of the Shares (the “Standstill Period”), each Stockholder agree that Reliance and RIC shall not, and such Stockholder shall cause its controlled not permit any of their Affiliates and Investor Parent and each to, either individually or as part of its controlled Affiliates not toa Group, directly or indirectly:
(i) exceed the Standstill Percentage (other than as a result of any stock purchases or repurchases by LandAmerica) or otherwise acquire (other than acquisitions (x) pursuant to or contemplated by the Stock Purchase Agreement, alone including without limitation the conversion of the Series B Preferred Stock, or (y) resulting from corporate action taken by the Board of Directors with respect to any pro rata distribution of shares of Common Stock in concert connection with any stock split, stock dividend, recapitalization, reclassification or similar transaction), propose to acquire (or publicly announce or otherwise disclose an intention to propose to acquire), offer to acquire, or agree to acquire any Common Stock or Series B Preferred Stock; provided that this Section 3.1(a)(i) shall not apply to any acquisition (a) of options, Common Stock, warrants, rights or other securities convertible or exchangeable into Common Stock granted to any person, except including without limitation RIC Directors, pursuant to any benefit plan of LandAmerica or any of its Affiliates or the exercise of any such option, warrant or right or conversion or exchange of any convertible or exchangeable security or (b) upon the exercise by RIC or its Affiliates of rights pursuant to the Rights Agreement but only to the extent that such acquisition does not cause an increase in the RIC Ownership Percentage above that which existed immediately prior to the rights becoming exercisable and provided that all of the shares of Common Stock so acquired upon the exercise of the rights shall be subject to all of the terms of this Agreement;
(ii) propose (or publicly announce or otherwise disclose an intention to propose), solicit, offer, seek to effect, negotiate with or provide any confidential information relating to LandAmerica or its business to any other Person with respect to, any tender or exchange offer, merger, consolidation, share exchange, business combination, restructuring, recapitalization or similar transaction involving LandAmerica (other than (x) any of the foregoing that may be approved by the Board of Directors or (y) in connection with any tender or exchange offer in which the Board of Directors has (a) recommended that its shareholders accept such offer or (b) after ten (10) business days (as expressly defined in Rule 14d-1 under the Exchange Act as in effect on the date of this Agreement) from the date of commencement of such offer, expressed no opinion, remained neutral, was unable to take a position or otherwise did not oppose or recommend that its shareholders reject such offer); provided that nothing set forth in this Section 7.1 (and excluding Securities beneficially owned 3.1(a)(ii) shall prohibit RIC or its Affiliates from soliciting, offering, seeking to effect or negotiating with any Person with respect to Transfers of Common Stock or Series B Preferred Stock otherwise required or permitted by third parties unaffiliated Article IV of this Agreement; provided further that in so soliciting, offering, seeking to the Holder which are managed effect or negotiating, neither RIC nor its Affiliates shall provide any confidential information relating to LandAmerica or its business to any Person except as required by Investor Parent and its controlled Affiliates; providedapplicable law, that such persons with investment authority for such Securities do not receive any Confidential Information (as defined in the Investment Agreementincluding without limitation Section 10(b) from the Holder):
(1) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Securities, other than (x) the Registrable Securities and (y) the Additional Shares;
(2) publicly propose, offer or participate in any effort to acquire the Company or any of its Subsidiaries or any assets or operations of the Company or any of its Subsidiaries;
(3) knowingly induce or attempt to induce any third party to proposeExchange Act and Rule 10b-5 thereunder, offer or participate in any effort to acquire beneficial ownership of voting Securities (other than the Shares as and but only to the extent permitted that any required disclosure of such confidential information has been preceded by notice to LandAmerica of the expected disclosure of such information and the execution of a confidentiality agreement by RIC (or its Affiliates, as the case may be) and such Person in accordance with ARTICLE IIIthe form attached hereto as Exhibit B (such confidentiality agreement to be promptly forwarded to LandAmerica for its execution, which execution may be subsequent to the disclosure described in this proviso, provided that the failure of LandAmerica to so execute such confidentiality agreement shall in no way be construed to be a failure on the part of RIC (or its Affiliates, as the case may be) to fulfill its obligations under this Section 3.1(a)(ii) or to limit or affect the validity of such confidentiality agreement as between RIC (or its Affiliates, as the case may be) and such Person);
(4iii) publicly proposemake, offer or participate in any tender offer, exchange offer, merger, acquisition, share exchange or other business combination or Change of Control transaction involving the Company or any of its subsidiaries, or any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving the Company, any of its subsidiaries or any material portion of their businesses;
(5) seek to call, request the call of, or call a special meeting of the stockholders of the Company, or make or seek to make a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company or in connection with any action by consent in lieu of a meeting, or make a request for a list of the Company’s stockholders, or seek election to the Board or seek to place a representative on the Board, or seek the removal of any director from the Board, other than the Holder Designees;
(6) solicit proxies, designations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to voting Securities, or make or in any way participate in, any "solicitation" of "proxies" to vote (as such terms are defined in any “solicitation” of any “proxy” within the meaning of Rule 14a-1 promulgated by the SEC under the Exchange Act (but without regard Act), solicit any consent or communicate with or seek to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote advise or influence any voting Securities with respect to any matter, person or become a participant in any contested solicitation for the election of directors entity with respect to the Company voting of any Common Stock or become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act and Act) with respect to LandAmerica; provided that nothing in this Section 3.1(a)(iii) shall apply to any deemed solicitation of proxies by the rules promulgated thereunderRIC Directors that may result from such RIC Directors' position or status as a director of LandAmerica at the time of any general solicitation of proxies by the management of LandAmerica;
(iv) form, participate in or join any Person or Group with respect to any Common Stock or Series B Preferred Stock, or otherwise act in concert with any third Person for the purpose of (x) acquiring any Common Stock or Series B Preferred Stock or (y) holding or disposing of Common Stock or Series B Preferred Stock for any purpose prohibited by this Section 3.1(a);
(7v) make except as specifically provided in the Stock Purchase Agreement or issue Section 3.2 below, deposit any Common Stock or cause Series B Preferred Stock into a voting trust or subject any Common Stock or Series B Preferred Stock to be made any arrangement or issued any public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) (A) in express support of any solicitation described in clause (6) above (other than solicitations on behalf of the Board) or (B) in express support of any matter described in clauses (4) or (5) above;
(8) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act agreement with respect to the voting Securitiesthereof;
(vi) initiate, propose or deposit otherwise solicit shareholders for the approval of any voting Securities in a voting trust or similar arrangement, or subject any voting Securities to any voting agreement or pooling arrangement, or grant any proxy, designation or consent shareholder proposal with respect to LandAmerica as described in Rule 14a-8 under the Exchange Act, or induce or attempt to induce any voting Securities other Person to initiate, propose or otherwise solicit any such shareholder proposal;
(vii) except as specifically provided in Article II of this Agreement and in the Series B Preferred Stock designation, seek election to or seek to place a representative on the Board of Directors, or seek the removal of any member of the Board of Directors (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with other Stockholders or one or more Affiliates (other than portfolio or operating companies) of a Stockholder with respect to the Shares or other voting Securities acquired in compliance with the Investment Agreement and this Agreement or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement (it being understood that the holding by persons or entities of voting Securities in accounts or through funds not managed or controlled by Investor Parent or any of its controlled Affiliates shall not give rise to a violation of this clause (8) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by Investor Parent or any of its controlled Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Stockholders within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting Securities; provided there does not exist as between such persons or entities, on the one hand, and Investor Parent or any of its controlled Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this Section 7.1RIC Director);
(9viii) except as specifically provided in the Series B Preferred Stock designation, call or seek in to have called any manner to obtain meeting of the shareholders of LandAmerica for any amendment, redemption, termination or waiver of any stockholder rights plan or similar agreement; orpurpose;
(10ix) publicly discloseexcept through the RIC Directors, or knowingly cause and except as specifically provided in the public disclosure (including without limitation the filing of any document or report with the SEC or Series B Preferred Stock designation, take any other governmental agencyaction to seek to control, disrupt or influence the management or policies of LandAmerica;
(x) ofexcept as specifically provided in the Series B Preferred Stock designation, any intentdemand, purposerequest or propose to amend, plan waive or proposal to obtain any waiver, consent under, or amendment of, any of terminate the provisions of this Section 7.1 3.1(a); or
(xi) agree to do any of the foregoing, or otherwise bring advise, assist, encourage or persuade any third party to take any action or otherwise act with respect to contest the validity or enforceability of this Section 7.1. For purposes of this Section 7.1, a person shall not be a controlled Affiliate of a Stockholder or Investor Parent, respectively, unless the Stockholder or Investor Parent or their respective controlled Affiliates, as the case may be, has the power to vote the majority any of the outstanding equity securities of such person or otherwise has the power to control the management and policies of such person (and provided that such person does not receive any Confidential Information (as defined in the Investment Agreement) from the Holder)foregoing.
(b) This Section 7.1 shall notReliance and RIC agree that they will notify LandAmerica promptly if any inquiries or proposals are received by, in any wayinformation is exchanged with respect to, preventor any negotiations or discussions are initiated or continued by or with, restrictReliance, encumber or limit (i) the Stockholders and their Affiliates from (A) exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement and the Investment Agreement in accordance with the terms hereof and thereof, (B) if the Board has previously authorized or approved the solicitation by the Company of bids or indications of interest in the potential acquisition of the Company RIC or any of its assets or operations their Affiliates regarding any matter described in Section 3.1(a) above (excluding the first proviso of Section 3.1(a)(ii) above). RIC and LandAmerica shall mutually agree upon an appropriate response to be made to any such proposals received by auction or other sales process (eachReliance, a “Sales Process”), participating in such Sales Process and, if selected as the successful bidder by the Company, completing the acquisition contemplated thereby, provided that the Stockholder and its Affiliates shall otherwise remain subject to the provisions of this Section 7.1 in all respects during and following the completion of the Sales Process, or (C) engaging in confidential discussions with the Board RIC or any of its members regarding any of the matters described in this Section 7.1, provided that (x) the Stockholder and its Affiliates will not publicly disclose the existence of such discussions and (y) such discussions would not reasonably be expected to require either party to make any public disclosure unless approved by the Board, or (ii) any Holder Designee then serving as a director from acting as a director or exercising and performing his or her duties (fiduciary and otherwise) as a director in accordance with the Company’s Certificate of Incorporation and By-Laws, all codes and policies of the Company and all laws, rules, regulations and codes of practice, in each case as may be applicable and in effect from time to timetheir Affiliates.
(c) Notwithstanding anything to the contrary Nothing contained in this Agreement, this Section 7.1 Article III shall be of no further force and effect with respect deemed to a Holder restrict the manner in which the event that (i) the Company shall enter into any agreement with a third party (including the Holder) providing for (A) a merger, (B) a tender RIC Directors may participate in deliberations or exchange offer for at least a majority of then outstanding Securities discussions of the Company, (C) a sale Board of at least a majority Directors or individual consultations with the Chairman of the consolidated assets Board or any other members of the Company and its Subsidiaries (including equity securities Board of SubsidiariesDirectors, so long as such actions do not otherwise violate any provision of Section 3.1(a) or equity securities of such other party in a single transaction or series of related transactions, (D) a recapitalization or other transaction involving the Company that results in one person or group acquiring beneficial ownership of at least a majority of the Securities of the Company when aggregated with other Securities held by such person or group or (E) any other single transaction or series of related transactions that results in a Change of Control of the Company (any of the transactions referred to in the foregoing clauses (A) through (E), a “Change of Control Transaction”) or (ii) the Company shall publicly disclose that it is in discussions or negotiations with a third party with respect to a Change of Control Transactionabove.
Appears in 1 contract
Sources: Voting and Standstill Agreement (Landamerica Financial Group Inc)
Standstill Restrictions. (a) From and after the Initial Closing Date until the later of (x) the three (3) year anniversary of the Initial Closing Date and (y) the one (1) year anniversary of the date on which the Holder shall cease to own at least 50% of the Shares Class A Common Stock acquired by the Holder at Closing (the “Standstill Period”), each Stockholder shall not, and such Stockholder shall cause its controlled Affiliates and Investor Allianz Parent and each of its controlled Affiliates not to, directly or indirectly, alone or in concert with any other person, except as expressly set forth in this Section 7.1 (and excluding (i) Securities beneficially owned by third parties unaffiliated to the Holder which are managed by Investor -30- Allianz Parent and its controlled AffiliatesAffiliates for the account of third parties in the ordinary course of business and (ii) Securities managed by third parties held in investment funds in which Allianz Parent and its controlled Affiliates are invested but without investment authority; provided, that that, in the case of clauses (i) and (ii), such persons with investment authority for such Securities do not receive any Confidential Information (as defined in the Investment Agreement) from the Holder):
)): (1) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership of any Securities, other than (x) the Registrable Securities and (y) the Additional Shares;
; (2) publicly propose, offer or participate in any effort to acquire the Company or any of its Subsidiaries or any assets or operations of the Company or any of its Subsidiaries;
; (3) knowingly induce or attempt to induce any third party to propose, offer or participate in any effort to acquire beneficial ownership of voting Securities (other than the Shares as and to the extent permitted in accordance with ARTICLE III);
; (4) publicly propose, offer or participate in any tender offer, exchange offer, merger, acquisition, share exchange or other business combination or Change of Control transaction involving the Company or any of its subsidiaries, or any recapitalization, restructuring, liquidation, disposition, dissolution or other extraordinary transaction involving the Company, any of its subsidiaries or any material portion of their businesses;
; (5) seek to call, request the call of, or call a special meeting of the stockholders of the Company, or make or seek to make a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the stockholders of the Company or in connection with any action by consent in lieu of a meeting, or make a request for a list of the Company’s stockholders, or seek election to the Board or seek to place a representative on the BoardBoard (other than as expressly set forth in Section 2.1), or seek the removal of any director from the Board, other than the Holder Designees;
; (6) solicit proxies, designations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to voting Securities, 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 (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any voting Securities with respect to any matter, or become a participant in any contested solicitation for the election of directors with respect to the Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder);
; (7) make or issue or cause to be made or issued any public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) (A) in express support of any solicitation described in clause (6) above (other than solicitations on behalf of the Board) or (B) in express support of any matter described in clauses (4) or (5) above;
(8) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting Securities, or deposit any voting Securities in a voting trust or similar arrangement, or subject any voting Securities to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any voting Securities (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with other Stockholders or one or more Affiliates (other than portfolio or operating companies) of a Stockholder with respect to the Shares or other voting Securities acquired in compliance with the Investment Agreement and this Agreement or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement (it being understood that the holding by persons or entities of voting Securities in accounts or through funds not managed or controlled by Investor Parent or any of its controlled Affiliates shall not give rise to a violation of this clause (8) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by Investor Parent or any of its controlled Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Stockholders within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting Securities; provided there does not exist as between such persons or entities, on the one hand, and Investor Parent or any of its controlled Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this Section 7.1);
(9) seek in any manner to obtain any amendment, redemption, termination or waiver of any stockholder rights plan or similar agreement; or
(10) publicly disclose, or knowingly cause the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of this Section 7.1 or otherwise bring any action or otherwise act to contest the validity or enforceability of this Section 7.1. For purposes of this Section 7.1, a person shall not be a controlled Affiliate of a Stockholder or Investor Parent, respectively, unless the Stockholder or Investor Parent or their respective controlled Affiliates, as the case may be, has the power to vote the majority of the outstanding equity securities of such person or otherwise has the power to control the management and policies of such person (and provided that such person does not receive any Confidential Information (as defined in the Investment Agreement) from the Holder).
(b) This Section 7.1 shall not, in any way, prevent, restrict, encumber or limit (i) the Stockholders and their Affiliates from (A) exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement and the Investment Agreement in accordance with the terms hereof and thereof, (B) if the Board has previously authorized or approved the solicitation by the Company of bids or indications of interest in the potential acquisition of the Company or any of its assets or operations by auction or other sales process (each, a “Sales Process”), participating in such Sales Process and, if selected as the successful bidder by the Company, completing the acquisition contemplated thereby, provided that the Stockholder and its Affiliates shall otherwise remain subject to the provisions of this Section 7.1 in all respects during and following the completion of the Sales Process, or (C) engaging in confidential discussions with the Board or any of its members regarding any of the matters described in this Section 7.1, provided that (x) the Stockholder and its Affiliates will not publicly disclose the existence of such discussions and (y) such discussions would not reasonably be expected to require either party to make any public disclosure unless approved by the Board, or (ii) any Holder Designee then serving as a director from acting as a director or exercising and performing his or her duties (fiduciary and otherwise) as a director in accordance with the Company’s Certificate of Incorporation and By-Laws, all codes and policies of the Company and all laws, rules, regulations and codes of practice, in each case as may be applicable and in effect from time to time.
(c) Notwithstanding anything to the contrary in this Agreement, this Section 7.1 shall be of no further force and effect with respect to a Holder in the event that (i) the Company shall enter into any agreement with a third party (including the Holder) providing for (A) a merger, (B) a tender or exchange offer for at least a majority of then outstanding Securities of the Company, (C) a sale of at least a majority of the consolidated assets of the Company and its Subsidiaries (including equity securities of Subsidiaries) or equity securities of such other party in a single transaction or series of related transactions, (D) a recapitalization or other transaction involving the Company that results in one person or group acquiring beneficial ownership of at least a majority of the Securities of the Company when aggregated with other Securities held by such person or group or (E) any other single transaction or series of related transactions that results in a Change of Control of the Company (any of the transactions referred to in the foregoing clauses (A) through (E), a “Change of Control Transaction”) or (ii) the Company shall publicly disclose that it is in discussions or negotiations with a third party with respect to a Change of Control Transaction.clause
Appears in 1 contract
Standstill Restrictions. (a) From and after the Initial Closing Date date of this Agreement until the later of (xi) the three (3) year anniversary of the Initial Closing Date and (y) the date that is one (1) year anniversary after the date of this Agreement and (ii) 30 days following the date that the Investors are no longer entitled to select a Board Observer including as a result of the date on which the Holder shall cease Investors irrevocably waiving their rights to own at least 50% of the Shares select a Board Observer pursuant to this Agreement (the “Standstill Period”), each Stockholder without the prior written consent of the Company, Investors and their respective Controlled Affiliates shall not (and any Person acting on behalf of or at the direction of any Investor or any such Controlled Affiliates shall not, and such Stockholder shall cause its controlled Affiliates and Investor Parent and each of its controlled Affiliates not to), directly or indirectly:
(i) acquire, alone or in concert with agree or offer to acquire (including through the acquisition of Beneficial Ownership) any Equity Securities of the Company or a material portion of the assets of the Company or its Subsidiaries, or any warrant, option or other persondirect or indirect right to acquire any such securities or assets; provided, except as expressly set forth however, that nothing in this Section 7.1 Section 4.1(a)(i) shall prevent (and excluding Securities beneficially owned by third parties unaffiliated A) the acquisition of (x) Common Stock pursuant to the Holder which are managed exercise, conversion or redemption of shares of preferred stock or warrants of the Company held by an Investor Parent or its controlled Affiliates as of the date hereof in accordance with their terms or (y) in the event that the Company issues Equity Securities in connection with a capital raising or liability management transaction, voting Common Stock acquired within three (3) months of such capital raising or liability management transaction to the minimum extent necessary to reverse the dilution to an Investor and its controlled Affiliates’ total percentage voting power of the voting Common Stock of the Company resulting from such capital raising or liability management transaction, (B) acquisitions as a result of new funds and accounts coming under management by the Investor Adviser or its Controlled Affiliates in the ordinary course of business and not for the purpose of acquiring Equity Securities of the Company, (C) acquisitions by any broad-based index-based funds controlled by the Investor Adviser (if Equity Securities of the Company are included in the applicable index or benchmark; provided, provided that such persons with investment authority for such Securities the Investor Adviser and its Controlled Affiliates do not receive have discretion over inclusion of such Equity Securities in such index or benchmark) or investing in any Confidential Information broad-based index-based funds or (as defined D) the Investor Adviser and its Controlled Affiliates (including the Investors) collectively and in the Investment Agreement) from aggregate acquiring up to 2% of the Holder):
issued and outstanding Equity Securities of the Company (1) purchase or cause not including and in addition to be purchased or otherwise acquire or agree to acquire beneficial ownership any of any Securities, other than (x) the Registrable Securities and (y) the Additional Subject Shares);
(2ii) publicly propose, offer make or participate in any effort submit to acquire the Company or any of its Subsidiaries any proposal for or offer to enter into any assets or operations of the Company or any of its Subsidiaries;
(3) knowingly induce or attempt to induce any third party to propose, offer or participate in any effort to acquire beneficial ownership of voting Securities (other than the Shares as and to the extent permitted in accordance with ARTICLE III);
(4) publicly propose, offer or participate in any tender offer, exchange offer, merger, acquisitionbusiness combination, share exchange recapitalization, restructuring or other business combination or Change of Control extraordinary transaction involving the Company or any of its subsidiariesSubsidiaries, either publicly or in a manner that would reasonably be expected to require public disclosure by the Company or the Investor Adviser, any Investor or any recapitalizationof their respective Controlled Affiliates (it being understood that the foregoing shall not restrict any Investor or its Controlled Affiliates from tendering shares, restructuring, liquidation, disposition, dissolution receiving consideration or other payment for shares or otherwise participating in any extraordinary transaction involving transaction, in each case, on the Company, any same basis as other stockholders or debtholders of its subsidiaries or any material portion of their businessesthe Company generally);
(5iii) engage in, any “solicitation” of “proxies” as such terms are used in the proxy rules of the U.S. Securities and Exchange Commission (the “SEC”) with respect to the election or removal of directors of the Company or any other matter or proposal relating to the Company or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Exchange Act) in any such solicitation of proxies;
(iv) file with the SEC a proxy statement or any supplement thereof or any other soliciting material in respect of the Company or its stockholders that would be required to be filed with the SEC pursuant to Rule 14a-12 or other provisions of the Exchange Act;
(v) (x) nominate or recommend for nomination a person for election to the Board at any Stockholder Meeting at which directors of the Board are to be elected or (y) seek the removal of any member of the Board;
(vi) submit any stockholder proposal for consideration at, or bring any other business before, any Stockholder Meeting;
(vii) initiate or in any way intentionally participate or engage in, any “withhold” or similar campaign with respect to callany Stockholder Meeting;
(viii) form, request join or knowingly act in concert with a “group” (within the call meaning of Section 13(d)(3) of the Exchange Act) for the purpose of voting, acquiring, holding, or disposing of, any Equity Securities of the Company (other than solely with controlled Affiliates of the Investors);
(ix) call or seek to call (publicly or otherwise), alone or in concert with others, a special meeting of the stockholders of the Company, or make initiate or seek propose any action by written consent;
(x) enter into any negotiations, agreements or arrangements with any other Persons to make a stockholder proposal (whether take any action that an Investor and its Controlled Affiliates are prohibited from taking pursuant to Rule 14a-8 under the Exchange Act this Section 4.1; or
(xi) make any request to amend or otherwise) at waive any meeting provision of the stockholders of this Section 4.1(a), in each case publicly or in a manner that would reasonably be expected to require the Company or the Investor Adviser, any Investor or any of their respective Controlled Affiliates to make any public announcement or disclosure of such request; provided, that the foregoing shall not restrict any request to irrevocably waive the Investors’ right to select a Board Observer pursuant to this Agreement.
(b) Notwithstanding anything to the contrary in connection with Section 4.1(a), this Section 4.1 shall not prevent or restrict the ability of an Investor or any action by consent in lieu of its Controlled Affiliates from making any proposal to the Company or the Board privately, so long as the making or receipt of such proposal would not reasonably be expected to require the Company or the Investor Adviser, any Investor or any of their Controlled Affiliates to make any public disclosure regarding the possibility of a meetingbusiness combination, merger or make other type of transaction described in Section 4.1(a) unless and until such proposal is approved by the Board. If the Company agrees in writing to waive the material obligations of ▇▇▇▇▇▇▇ or its Affiliates from its obligations under Section 4.1 thereof (Standstill Restrictions), the Company will provide a request for a list similar and proportionate waiver of the Company’s stockholders, or seek election to Investors’ obligations under this Section 4.1; provided that the Board or seek to place a representative on the Board, or seek the removal of any director from the Board, other than the Holder Designees;
(6) solicit proxies, designations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to voting Securities, 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 (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any voting Securities Company will retain all rights and remedies with respect to any matterbreach by an Investor occurring prior to such waiver.
(i) This Section 4.1 shall be inoperative and of no force and effect upon the earliest of: (x) as a nonexclusive remedy for any material breach of Section 3.1 of this Agreement by the Company, or become a participant in any contested solicitation for upon ten (10) Business Days’ written notice by the election of directors with respect Investors to the Company if such breach has not been cured within such notice period, provided that none of the Investors or their respective Controlled Affiliates are in material breach of this Agreement at the time such notice is given or prior to the end of the notice period; (y) any Person or “group” (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder);
(7) make or issue or cause to be made or issued any public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) (A) in express support of any solicitation described in clause (6) above (other than solicitations on behalf of the Board) or (B) in express support of any matter described in clauses (4) or (5) above;
(8) form, join, or in any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act) other than an Investor or any of its Controlled Affiliates, or any “group” including or consisting of any Investors or any of their Controlled Affiliates (A) entering into an agreement with the Company to (1) acquire Beneficial Ownership of more than 50% of the total voting power of the Equity Securities of the Company, (2) designate members who, in the aggregate, hold a majority of the voting power of the Board, or (3) acquire all or substantially all of the assets of the Company and its Subsidiaries or (B) commencing any tender or exchange offer which, if consummated, would result in the acquisition by any Person of Beneficial Ownership of more than 50% of the total voting power of the Equity Securities of the Company, where the Company files with the SEC a Schedule 14D-9 (or any amendment thereto) that does not recommend that its shareholders reject such tender or exchange offer (other than a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act in response to the commencement of any tender or exchange offer); and (z) if the Board recommends for approval or adopts any amendment to the certificate of incorporation or bylaws of the Company that would reasonably be expected to impair in any material respect the Company’s ability to comply with the terms of this Agreement upon ten (10) Business Days’ written notice by the Investors to the Company if such noncompliance has not been cured within such notice period;
(ii) if the Company enters into, or publicly announces any plans to enter into, any agreement or understanding with respect to the voting Securities, sale or deposit any voting Securities in a voting trust disposition of all or similar arrangement, or subject any voting Securities to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any voting Securities (other than to a designated representative substantially all of the Company pursuant to a proxy equity or consent solicitation on behalf assets of the Board), other than solely with other Stockholders or one or more Affiliates (other than portfolio or operating companies) of a Stockholder with respect to the Shares or other voting Securities acquired in compliance with the Investment Agreement and this Agreement or to the extent such a group may be deemed to result with the Company or any of its Affiliates the Company’s significant subsidiaries (as a result of this Agreement (it being understood that the holding by persons or entities of voting Securities such term is defined in accounts or through funds not managed or controlled by Investor Parent or any of its controlled Affiliates shall not give rise to a violation of this clause (8) solely by virtue Rule 405 of the fact that such persons Securities Act) or entitiesother extraordinary transaction, nothing in addition to holding such shares in such manner, are investors in funds and accounts managed by Investor Parent this Section 4.1 shall prohibit or restrict the Investors or their respective Affiliates from making any of its controlled Affiliates and, in their capacity as such, are private statements (written or may be deemed to be members of a “group” with the Stockholders within the meaning of Section 13(d)(3oral) of the Exchange Act with respect to the voting Securitiessuch sale or disposition; provided there does not exist as between such persons or entities, on the one hand, and Investor Parent or any of its controlled Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by and
(iii) nothing in this Section 7.1);
(9) seek in any manner 4.1 shall be understood to obtain any amendment, redemption, termination or waiver of any stockholder rights plan or similar agreement; or
(10) publicly disclose, or knowingly cause the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of this Section 7.1 prohibit or otherwise bring any action limit the Investors and their Controlled Affiliates from (1) (A) negotiating with third parties, evaluating or otherwise act to contest the validity trading, directly or enforceability of this Section 7.1. For purposes of this Section 7.1, a person shall not be a controlled Affiliate of a Stockholder or Investor Parent, respectively, unless the Stockholder or Investor Parent or their respective controlled Affiliates, as the case may be, has the power to vote the majority of the outstanding equity securities of such person or otherwise has the power to control the management and policies of such person (and provided that such person does not receive any Confidential Information (as defined in the Investment Agreement) from the Holder).
(b) This Section 7.1 shall notindirectly, in any way, prevent, restrict, encumber or limit (i) the Stockholders and their Affiliates from (A) exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement and the Investment Agreement in accordance with the terms hereof and thereof, (B) if the Board has previously authorized or approved the solicitation by the Company of bids or indications of interest in the potential acquisition non-convertible indebtedness of the Company or any of its assets or operations by auction Subsidiaries, Derivative Instruments that can only be settled with cash payments, exchange traded fund, benchmark or other sales process (eachbasket of securities which may contain, a “Sales Process”)or may otherwise reflect the performance of, participating in such Sales Process and, if selected as the successful bidder by any securities of the Company, completing (B) selling Equity Securities or exercising rights in accordance with the acquisition contemplated thereby, provided that the Stockholder and its Affiliates shall otherwise remain subject to the provisions of this Section 7.1 in all respects during and following the completion of the Sales Process, Registration Rights Agreement or (C) pledging, lending, hypothecating or granting a security interest or lien in any Equity Securities (or any similar transaction), (2) engaging in confidential discussions private communications with the Board or any of its members regarding any Chairman of the matters described Board, Chief Executive Officer or other senior executive officers or their designees, in this Section 7.1each case, provided that (x) the Stockholder and its Affiliates will not publicly disclose the existence of only so long as such discussions and (y) such discussions private communications would not reasonably be expected to require either party to make any public disclosure thereof by the Company or the Investor Adviser, any other Investor or any of their controlled Affiliates unless and until any proposal included in such private communications is approved by the Board, (3) making any factual statement to comply with any oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process by any Governmental Entity or pursuant to Law (so long as such process or request did not arise as a result of discretionary acts by the Investor Adviser or any of its Controlled Affiliates), in accordance with Section 4.3(b) or (ii4) granting any Holder Designee then serving as liens or encumbrances on any claims or interests in favor of a director from acting as a director bank or exercising and performing his broker-dealer or her duties (fiduciary and otherwise) as a director prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the Company’s Certificate of Incorporation and By-Laws, all codes and policies terms of the Company and all lawscustody or prime brokerage agreement(s), rules, regulations and codes of practice, in each case as may be applicable and in effect or depositing (or withdrawing from time to time.
(cdeposit) Notwithstanding anything to the contrary in this Agreement, this Section 7.1 shall be of no further force and effect any Equity Securities with respect a fiduciary or depositary pursuant to a Holder in the event that (i) the Company shall enter into any deposit agreement with a third party or arrangements (including the Holder) providing for (A) a merger, (B) a tender or exchange offer for at least a majority of then outstanding Securities of the Company, (C) a sale of at least a majority of the consolidated assets of the Company and its Subsidiaries (including equity securities of Subsidiaries) or equity securities of such other party in a single transaction or series of related transactions, (D) a recapitalization or other transaction involving the Company that results in one person or group acquiring beneficial ownership of at least a majority of the Securities of the Company when aggregated with other Securities held by such person or group or (E) any other single transaction or series of related transactions that results in a Change of Control of the Company (any of the transactions referred to in the foregoing clauses (A) through (Eprime broker account), a “Change of Control Transaction”) or (ii) the Company shall publicly disclose that it is in discussions or negotiations with a third party with respect to a Change of Control Transaction.
Appears in 1 contract
Standstill Restrictions. (a) From and after the Initial Closing Date until the later of (x) the three ten (310) year anniversary of the Initial Closing Date and (y) the one three (13) year anniversary of the date on which the Holder Shareholders shall cease to own Beneficially Own, in the aggregate, Voting Securities representing at least 50% of the Shares Ownership Threshold (the “Standstill Period”), each Stockholder shall notwithout the prior written consent of the Company, no Shareholder shall, and such Stockholder each Shareholder shall cause its controlled Affiliates and Investor Parent and each of its controlled Affiliates not to, directly or indirectly, alone or in concert with any other personPerson, except as otherwise expressly set forth in this Section 7.1 (and excluding Securities beneficially owned by third parties unaffiliated to the Holder which are managed by Investor Parent and its controlled Affiliates; provided, that such persons with investment authority for such Securities do not receive any Confidential Information (as defined in the Investment Agreement) from the Holder):4.1:
(1i) purchase or cause acquire, offer to be purchased or otherwise acquire or agree to acquire beneficial ownership Beneficial Ownership of any SecuritiesVoting Securities or any other securities of the Company or its Subsidiaries, or any securities convertible into or exchangeable or exercisable for any Voting Securities or any other than securities of the Company or its Subsidiaries, except in the case of the Shareholders only (xA) the Registrable pursuant to stock splits, reverse stock splits, stock dividends or distributions, combinations, reclassifications or any similar recapitalizations or (B) acquisitions or purchases of Voting Securities pursuant to and (y) the Additional Sharesin accordance with Section 4.4;
(2ii) publicly proposeacquire, offer or participate in any effort to acquire or agree to acquire any assets of the Company or any of its Subsidiaries that are material to the operations, financial condition or any assets or operations prospects of the Company or any of and its Subsidiaries, taken as a whole;
(3iii) knowingly induce or attempt to induce any third party to propose, offer or participate in any effort other Person to acquire beneficial ownership or propose or offer to acquire Beneficial Ownership of voting Voting Securities (other than the Shareholder Shares as and to the extent permitted in accordance with ARTICLE IIIV);
(4iv) publicly proposeinitiate or make a proposal for any scheme of arrangement, offer merger, tender, takeover or participate in any tender offer, exchange offer, mergerbusiness combination, acquisition, share exchange or other business combination or Change of Control transaction involving the Company or any of its subsidiaries, or any recapitalizationreorganization, restructuring, liquidation, disposition, dissolution recapitalization or other extraordinary transaction involving that would, if consummated, result in a Change of Control with respect to the Company, any of its subsidiaries or any material portion of their businesses;
(5v) seek the election, appointment or removal of any Directors (other than, in the case of the Original Shareholder, any Shareholder Designee) or seek a change in the composition or size of the Board;
(vi) except as otherwise required by applicable law, rule or regulation, make or cause to call, request be made any press release or similar public announcement or public communication relating to the call ofway a Shareholder intends to, or call a special meeting of the stockholders of the Companydoes, or make or seek to make a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) vote any Shareholder Shares at any meeting of the stockholders shareholders of the Company or in connection with any action by written consent at or in lieu which Voting Securities are entitled to vote;
(vii) deposit any Shareholder Shares into a voting trust or subject any Shareholder Shares to any proxy, arrangement or agreement with respect to the voting of such Shareholder Shares or other agreement having a meetingsimilar effect (other than as recommended by the Board);
(viii) initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal or solicit proxies or consents, or make in any way participate in, directly or indirectly, any “solicitation” of “proxies” to vote, or seek to influence any Person with respect to the voting of, any Voting Securities, or become a request “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act, as in effect on the date of this Agreement, whether or not such regulation is applicable to the Company) with respect to any Voting Securities;
(ix) publicly call or requisition a call for a list any general, special or extraordinary meeting of the Company’s stockholders, or seek election to the Board or seek to place a representative on the Board, or seek the removal of any director from the Board, other than the Holder Designeesshareholders;
(6x) solicit proxiesform, designations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to voting Securities, or make join 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 (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any voting Securities a Group with respect to any matterVoting Securities, or become other than a participant in any contested solicitation for Group consisting solely of the election of directors with respect to the Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder)Shareholders;
(7xi) make or issue or cause to be made or issued any public statement or disclosure (including without limitation the filing of any document or report inconsistent with the SEC or any other governmental agency) (A) in express support of any solicitation described in clause (6) above (other than solicitations on behalf of the Board) or (B) in express support of any matter described in clauses (4) or (5) aboveforegoing;
(8) formxii) assist, joinadvise, induce or in attempt to induce (or provide any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning confidential information of Section 13(d)(3) of the Exchange Act with respect to the voting Securities, or deposit any voting Securities in a voting trust or similar arrangement, or subject any voting Securities to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any voting Securities (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with other Stockholders or one or more Affiliates (other than portfolio or operating companies) of a Stockholder with respect to the Shares or other voting Securities acquired in compliance with the Investment Agreement and this Agreement or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result Subsidiaries for the purpose of this Agreement (it being understood that the holding by persons assisting, advising, inducing or entities of voting Securities in accounts attempting to induce) any other Person with respect to, or through funds not managed or controlled by Investor Parent or take any affirmative action to do, any of its controlled Affiliates shall not give rise to a violation of this clause (8) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by Investor Parent or any of its controlled Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Stockholders within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting Securities; provided there does not exist as between such persons or entities, on the one hand, and Investor Parent or any of its controlled Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this Section 7.1);
(9) seek in any manner to obtain any amendment, redemption, termination or waiver of any stockholder rights plan or similar agreementforegoing; or
(10xiii) publicly disclose, propose or knowingly cause the public disclosure (including without limitation the filing seek an amendment or waiver of any document or report with the SEC or any other governmental agency) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of this Section 7.1 or otherwise bring any action or otherwise act to contest the validity or enforceability of this Section 7.1. For purposes of this Section 7.1, a person shall not be a controlled Affiliate of a Stockholder or Investor Parent, respectively, unless the Stockholder or Investor Parent or their respective controlled Affiliates, as the case may be, has the power to vote the majority of the outstanding equity securities of such person or otherwise has the power to control the management and policies of such person (and provided that such person does not receive any Confidential Information (as defined in the Investment Agreement) from the Holder)4.1.
(b) This Section 7.1 shall not, in any way, prevent, restrict, encumber or limit (i) the Stockholders and their Affiliates from (A) exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement and the Investment Agreement in accordance with the terms hereof and thereof, (B) if the Board has previously authorized or approved the solicitation by the Company of bids or indications of interest in the potential acquisition of the Company or any of its assets or operations by auction or other sales process (each, a “Sales Process”), participating in such Sales Process and, if selected as the successful bidder by the Company, completing the acquisition contemplated thereby, provided that the Stockholder and its Affiliates shall otherwise remain subject to the provisions of this Section 7.1 in all respects during and following the completion of the Sales Process, or (C) engaging in confidential discussions with the Board or any of its members regarding any of the matters described in this Section 7.1, provided that (x) the Stockholder and its Affiliates will not publicly disclose the existence of such discussions and (y) such discussions would not reasonably be expected to require either party to make any public disclosure unless approved by the Board, or (ii) any Holder Designee then serving as a director from acting as a director or exercising and performing his or her duties (fiduciary and otherwise) as a director in accordance with the Company’s Certificate of Incorporation and By-Laws, all codes and policies of the Company and all laws, rules, regulations and codes of practice, in each case as may be applicable and in effect from time to time.
(c) Notwithstanding anything to the contrary in this Agreement, this Section 7.1 shall be of no further force and effect with respect to a Holder in the event that (i) the Company shall enter into any agreement with a third party (including the Holder) providing for (A) a merger, (B) a tender or exchange offer for at least a majority of then outstanding Securities of the Company, (C) a sale of at least a majority of the consolidated assets of the Company and its Subsidiaries (including equity securities of Subsidiaries) or equity securities of such other party in a single transaction or series of related transactions, (D) a recapitalization or other transaction involving the Company that results in one person or group acquiring beneficial ownership of at least a majority of the Securities of the Company when aggregated with other Securities held by such person or group or (E) any other single transaction or series of related transactions that results in a Change of Control of the Company (any of the transactions referred to in the foregoing clauses (A) through (E), a “Change of Control Transaction”) or (ii) the Company shall publicly disclose that it is in discussions or negotiations with a third party with respect to a Change of Control Transaction.
Appears in 1 contract
Standstill Restrictions. (a) From and after the Initial Closing Date until the later of (xi) the ten (10) year anniversary of the Closing Date and (ii) the three (3) year anniversary of the Initial Closing Date and (y) the one (1) year anniversary of the date on which the Holder Shareholders shall cease to own Beneficially Own, in the aggregate, Voting Securities representing at least 50% the Ownership Threshold, without the prior written consent of the Shares (the “Standstill Period”)Company, each Stockholder Cosmo Holding shall not, and such Stockholder Cosmo Holding shall cause its controlled Affiliates and Investor Parent and each of its controlled Affiliates not to, directly or indirectly, alone or in concert with any other personPerson, except as otherwise expressly set forth in this Section 7.1 (and excluding Securities beneficially owned by third parties unaffiliated 1:
a. acquire, offer to the Holder which are managed by Investor Parent and its controlled Affiliates; provided, that such persons with investment authority for such Securities do not receive any Confidential Information (as defined in the Investment Agreement) from the Holder):
(1) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial ownership Beneficial Ownership of any SecuritiesVoting Securities or any other securities of the Company or its Subsidiaries, or any securities convertible into or exchangeable or exercisable for any Voting Securities or any other than securities of the Company or its Subsidiaries, except in the case of the Shareholders only (xA) pursuant to stock splits, reverse stock splits, stock dividends or distributions, combinations, reclassifications or any similar recapitalizations or (B) acquisitions or purchases of Voting Securities pursuant to and in accordance with Section 4.4 of the Registrable Securities and (y) the Additional SharesShareholder’s Agreement;
(2) publicly proposeb. acquire, offer or participate in any effort to acquire or agree to acquire any assets of the Company or any of its Subsidiaries that are material to the operations, financial condition or any assets or operations prospects of the Company or any of and its Subsidiaries, taken as a whole;
(3) knowingly c. induce or attempt to induce any third party to propose, offer or participate in any effort other Person to acquire beneficial ownership or propose or offer to acquire Beneficial Ownership of voting Voting Securities (other than the Shareholder Shares as and to the extent permitted in accordance with ARTICLE IIIArticle V of the Shareholder’s Agreement);
(4) publicly proposed. initiate or make a proposal for any scheme of arrangement, offer merger, tender, takeover or participate in any tender offer, exchange offer, mergerbusiness combination, acquisition, share exchange or other business combination or Change of Control transaction involving the Company or any of its subsidiaries, or any recapitalizationreorganization, restructuring, liquidation, disposition, dissolution recapitalization or other extraordinary transaction involving that would, if consummated, result in a Change of Control with respect to the Company, any of its subsidiaries or any material portion of their businesses;
e. seek the election, appointment or removal of any Directors (5other than, in accordance with the terms of the Shareholder’s Agreement) or seek a change in the composition or size of the Board;
f. except as otherwise required by applicable law, rule or regulation, make or cause to call, request be made any press release or similar public announcement or public communication relating to the call ofway a Shareholder intends to, or call a special meeting of the stockholders of the Companydoes, or make or seek to make a stockholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) vote any Shareholder Shares at any meeting of the stockholders shareholders of the Company or in connection with any action by written consent at or in lieu which Voting Securities are entitled to vote;
g. deposit any Voting Securities into a voting trust or subject any Voting Securities to any proxy, arrangement or agreement with respect to the voting of such Voting Securities or other agreement having a meetingsimilar effect (other than as recommended by the Board);
h. initiate, propose or otherwise solicit shareholders for the approval of any shareholder proposal or solicit proxies or consents, or make in any way participate in, directly or indirectly, any “solicitation” of “proxies” to vote, or seek to influence any Person with respect to the voting of, any Voting Securities, or become a request “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act, as in effect on the date of the Shareholder’s Agreement, whether or not such regulation is applicable to the Company) with respect to any Voting Securities;
i. publicly call or requisition a call for a list any general, special or extraordinary meeting of the Company’s stockholders, or seek election to the Board or seek to place a representative on the Board, or seek the removal of any director from the Board, other than the Holder Designeesshareholders;
(6) solicit proxiesj. form, designations or written consents of stockholders, or conduct any binding or nonbinding referendum with respect to voting Securities, or make join 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 (but without regard to the exclusion set forth in Rule 14a-1(l)(2)(iv) from the definition of “solicitation”) to vote any voting Securities a Group with respect to any matter, or become a participant in any contested solicitation for the election of directors with respect to the Company (as such terms are defined or used in the Exchange Act and the rules promulgated thereunder)Voting Securities;
(7) k. make or issue or cause to be made or issued any public statement or disclosure (including without limitation the filing of any document or report inconsistent with the SEC or any other governmental agency) (A) in express support of any solicitation described in clause (6) above (other than solicitations on behalf of the Board) or (B) in express support of any matter described in clauses (4) or (5) aboveforegoing;
l. assist, advise, induce or attempt to induce (8) form, join, or in provide any other way participate in, a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting Securities, or deposit any voting Securities in a voting trust or similar arrangement, or subject any voting Securities to any voting agreement or pooling arrangement, or grant any proxy, designation or consent with respect to any voting Securities (other than to a designated representative of the Company pursuant to a proxy or consent solicitation on behalf of the Board), other than solely with other Stockholders or one or more Affiliates (other than portfolio or operating companies) of a Stockholder with respect to the Shares or other voting Securities acquired in compliance with the Investment Agreement and this Agreement or to the extent such a group may be deemed to result with the Company or any of its Affiliates as a result of this Agreement (it being understood that the holding by persons or entities of voting Securities in accounts or through funds not managed or controlled by Investor Parent or any of its controlled Affiliates shall not give rise to a violation of this clause (8) solely by virtue of the fact that such persons or entities, in addition to holding such shares in such manner, are investors in funds and accounts managed by Investor Parent or any of its controlled Affiliates and, in their capacity as such, are or may be deemed to be members of a “group” with the Stockholders within the meaning of Section 13(d)(3) of the Exchange Act with respect to the voting Securities; provided there does not exist as between such persons or entities, on the one hand, and Investor Parent or any of its controlled Affiliates, on the other hand, any agreement, arrangement or understanding with respect to any action that would otherwise be prohibited by this Section 7.1);
(9) seek in any manner to obtain any amendment, redemption, termination or waiver of any stockholder rights plan or similar agreement; or
(10) publicly disclose, or knowingly cause the public disclosure (including without limitation the filing of any document or report with the SEC or any other governmental agency) of, any intent, purpose, plan or proposal to obtain any waiver, consent under, or amendment of, any of the provisions of this Section 7.1 or otherwise bring any action or otherwise act to contest the validity or enforceability of this Section 7.1. For purposes of this Section 7.1, a person shall not be a controlled Affiliate of a Stockholder or Investor Parent, respectively, unless the Stockholder or Investor Parent or their respective controlled Affiliates, as the case may be, has the power to vote the majority of the outstanding equity securities of such person or otherwise has the power to control the management and policies of such person (and provided that such person does not receive any Confidential Information (as defined in the Investment Agreement) from the Holder).
(b) This Section 7.1 shall not, in any way, prevent, restrict, encumber or limit (i) the Stockholders and their Affiliates from (A) exercising their respective rights, performing their respective obligations or otherwise consummating the transactions contemplated by this Agreement and the Investment Agreement in accordance with the terms hereof and thereof, (B) if the Board has previously authorized or approved the solicitation by the Company of bids or indications of interest in the potential acquisition confidential information of the Company or any of its assets Subsidiaries for the purpose of assisting, advising, inducing or operations by auction attempting to induce) any other Person with respect to, or other sales process (eachtake any affirmative action to do, a “Sales Process”), participating in such Sales Process and, if selected as any of the successful bidder by the Company, completing the acquisition contemplated thereby, provided that the Stockholder and its Affiliates shall otherwise remain subject to foregoing; or
m. propose or seek an amendment or waiver of any of the provisions of this letter agreement or of Section 7.1 in all respects during and following the completion 4.1 of the Sales Process, or (C) engaging in confidential discussions with the Board or any of its members regarding any of the matters described in this Section 7.1, provided that (x) the Stockholder and its Affiliates will not publicly disclose the existence of such discussions and (y) such discussions would not reasonably be expected to require either party to make any public disclosure unless approved by the Board, or (ii) any Holder Designee then serving as a director from acting as a director or exercising and performing his or her duties (fiduciary and otherwise) as a director in accordance with the CompanyShareholder’s Certificate of Incorporation and By-Laws, all codes and policies of the Company and all laws, rules, regulations and codes of practice, in each case as may be applicable and in effect from time to timeAgreement.
(c) Notwithstanding anything to the contrary in this Agreement, this Section 7.1 shall be of no further force and effect with respect to a Holder in the event that (i) the Company shall enter into any agreement with a third party (including the Holder) providing for (A) a merger, (B) a tender or exchange offer for at least a majority of then outstanding Securities of the Company, (C) a sale of at least a majority of the consolidated assets of the Company and its Subsidiaries (including equity securities of Subsidiaries) or equity securities of such other party in a single transaction or series of related transactions, (D) a recapitalization or other transaction involving the Company that results in one person or group acquiring beneficial ownership of at least a majority of the Securities of the Company when aggregated with other Securities held by such person or group or (E) any other single transaction or series of related transactions that results in a Change of Control of the Company (any of the transactions referred to in the foregoing clauses (A) through (E), a “Change of Control Transaction”) or (ii) the Company shall publicly disclose that it is in discussions or negotiations with a third party with respect to a Change of Control Transaction.
Appears in 1 contract