Standstill provision clause samples

The Standstill Provision provides, among other things, that during the Standstill Period, unless specifically invited in writing by the Board, neither Vintage Capital nor certain of its controlled affiliates will, directly or indirectly, (1) effect or seek to effect (i) any recapitalization of the Issuer, any acquisition of any securities of the Issuer or rights or options to acquire any such securities, or any acquisition of all of substantially all of the assets, indebtedness or business of the Issuer; (ii) any tender or exchange offer, merger, consolidation or other business combination involving an acquisition of all or substantially all of the assets of the Issuer; or (iii) any solicitation of proxies or consents to vote any voting securities of the Issuer; (2) with respect to the Issuer, (i) form, join or in any way participate in a “group”; (ii) become a “participant” in any solicitation of proxies or consents; (iii) propose, or solicit stockholders for the approval of, any stockholder proposals; or (iv) seek to advise or influence any person with respect to the voting of, or giving of consents with respect to, any voting securities of the Issuer; (3) otherwise act to seek or obtain representation on, or control of, the Board; or (4) take any action that would be expected to force the Issuer to make a public announcement regarding the types of matters set forth in the Standstill Provision. Vintage Capital also agreed during the Standstill Period not to request that the Issuer amend, waive or terminate the Standstill Provision.

“In June 2018, we also received an unsolicited inquiry from a leading company in the cyber security industry (“Strategic CompanyA”) regarding its potential acquisition of the Company. We entered into a non-disclosure agreement with Strategic CompanyA in early July 2018 and then provided Strategic CompanyA with certain confidential information in response to its due diligence request. The non-disclosure agreement with Strategic CompanyA did not contain a standstill provision. Follow-up information requests and conversations continued with Strategic CompanyA on an intermittent basis through September 2018.

The following is a summary of material events, meetings and discussions that are relevant to the decision of the NTN board of directors to approve the Merger Agreement and the Asset Purchase Agreement and to recommend the Merger and the Asset Sale to NTN stockholders. It also provides an overview of the confidentiality agreements entered into by NTN with each of Companies A, B, D, E, F, G and H, and each of Investors 1, 2, 3, 4 and 5. The confidentiality agreements NTN entered into with Companies A, D, E, F, G, and H and with Investors 1, 2, 4 and 5 did not contain standstill provisions. The confidentiality agreements NTN entered into with each of Company B and Investor 3 contained a standstill provision. Neither of the confidentiality agreements between NTN and Company B or Investor 3 contained a “don’t ask, don’t waive” provision because, with respect to Company B, the standstill provision automatically terminated if NTN entered into a definitive agreement with respect to a strategic transaction, and with respect to Investor 3, the standstill provision automatically terminated no later than nine days after the date of the confidentiality agreement. Neither Company C nor Company I entered into any agreements with NTN.

The standstill provision restricts Party D’s ability to request or propose that the Company amend or waive any of the terms of the standstill provision. The standstill provision did not terminate upon the Company’s execution of the merger agreement.

Promptly after becoming aware that the standstill provision included in the January22, 2016 confidentiality agreement between the Company and Party A remained in effect because it did not by its terms terminate upon the Company’s execution of the Merger Agreement with Parent, the Company, without having communicated with Party A since February24, 2016, determined to request Parent’s consent to waive the Company’s rights under this standstill provision. On April13, 2016, Parent consented to this waiver and on the same date, the Company notified Party A that the Company waived its rights under this standstill provision.

On February 10, 2020, Company A requested the opportunity to perform due diligence on Standard and submitted a due diligence request list. As the Board had instructed executive management to continue to explore discussions with Company A and to obtain additional financial information about Company A, on February 11, 2020, Company A and Standard entered into a nondisclosure agreement to enable the two companies to exchange confidential information. The nondisclosure agreement contained provisions (collectively referred to as the “standstill provision”) which obligated Company A to refrain for a specified period of time from pursuing various actions that relate to acquisition of control of Standard, such as acting to influence the management of or the board of Standard, buying shares of Standard common stock, engaging in certain proxy solicitation activities, and disclosing the intention to do any of the foregoing. The nondisclosure agreement also contained a provision stating that Company A is not permitted to ask for a waiver of the standstill provision. Notwithstanding the foregoing, Company A could confidentially submit an acquisition proposal to Standard’s board of directors during the standstill period, subject to certain conditions. Thus, prior to the execution of the merger agreement between Standard, Dollar and Merger Sub (the “merger agreement”), Company A could not approach Standard to request a waiver of the standstill provision to publicly disclose an offer to acquire Standard in a consensual merger or other form that might constitute a superior proposal under the terms of the merger agreement, but could confidentially submit such a proposal to the board of Standard. Under the nondisclosure agreement, following the announcement of a definitive agreement to acquire Standard, some of Company A’s obligations under the standstill provision expire. However, even after the announcement of the merger agreement, Company A may still not publicly disclose an offer to acquire Standard (but can confidentially submit such an offer to the board of Standard). No waiver of the standstill provisions has occurred, as the merger agreement precludes Standard from doing so.

On September 18, 2016, Mr. Mathers met with Darren Carroll, Lilly’s Senior Vice President of Corporate Business Development, to discuss the terms of the Confidentiality Agreement, including the standstill provision. Around that date, CoLucid’s counsel, Faegre Baker Daniels LLP (“FaegreBD”), also spoke with representatives of Lilly regarding the Confidentiality Agreement. On September 23, 2016, Lilly and CoLucid agreed on the terms of, and executed, the Confidentiality Agreement (which was dated as of September 19, 2016 and included customary standstill provisions that automatically terminated upon the execution of the Merger Agreement) described in Section 11 – “Merger Agreement; Other Agreements—Other Agreements—Confidentiality Agreement” below, and after that date CoLucid made non-public information available to Lilly in an online data room.

33.We note your disclosure that the Stockholder Agreement contains a standstill provision that prohibits the Sponsor Entities from, among other things, proposing to or acquiring additional company shares. Please expand your disclosure to state whether you have agreed to terminate, waive, amend, or modify this standstill provision. Also discuss whether the Disinterested Directors considered the foregoing in determining that the going private transaction was procedurally and substantively fair to the unaffiliated security holders. We would expect the foregoing to address whether and how the Disinterested Directors considered the December 3, 2105 indication of interest communicated by Mr. Hoffman to Mr. Graham, and all subsequent negotiations with Riverstone with respect to the merger, in view of the restrictions set forth in Section 6 of the Stockholder Agreement.

On February4, 2020, Montage and Company B executed a mutual confidentiality agreement, and Montage provided Company B with access to an electronic data-room. The confidentiality agreement contained a customary reciprocal standstill provision and a provision prohibiting either party from requesting or proposing to waive, terminate or amend the standstill provision. The confidentiality agreement did not contain a “fall away” provision rendering the standstill provision inoperative and of no force or effect under certain circumstances.

(c) Standstill Provision. For and in consideration of the mutual covenants and premises contained herein, Hansen agrees that, for a period of twenty-four (24) months after the Effective Date, neither Hansen nor any family member (defined for this purpose to include his spouse and children) or company, partnership or trust in which Hansen (or such family member) owns five (5%) percent or more of its equity or voting interests or for which Hansen serves as an employee, agent, officer, director or partner will: (i) for the purposes of subparagraphs (ii) or (iii) hereafter, acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights or options to acquire any voting securities of the Company; (ii) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are interpreted in the proxy rules of the Securities and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company, or (iii) form, join or in any way participate in a “group” within the meaning of Section 13(d) (3) of the 1934 Act with respect to any voting securities of the Company for the purpose of seeking to control the management, Board of Directors or policies of the Company. Nothing in this Paragraph 5(c) Standstill Provision shall restrict Hansen’s ability to vote pursuant to his stock or other equity intestests that he currently holds or receives pursuant to this Agreement. Nor shall anything in this Paragraph 5(c) Standstill Provision prevent Hansen from serving as a member of the Company’s Board of Directors, voting as a member of the Company’s Board of Directors, or in any other way restrict Hansen from performing his duties as a member of the Company’s Board of Directors, without limitation.

31. Party B entered into a confidentiality agreement with the Company which included a standstill provision. Party C also entered into a confidentiality agreement but it is unclear from the 14D-9 if it also included a standstill provision.

On May9, 2018, we entered into a confidentiality agreement with Company F, which had contacted us in May 2018 on an unsolicited basis as a result of the announcement of the strategic process. The confidentiality agreement did not include a standstill provision. On the same day, Needham& Company also received an additional information request from Firmenich. Representatives of Conexus and Needham& Company had a call with representatives of Company B to discuss the opportunity and provide information concerning potential cost reductions at Senomyx.

Representatives of Sidley and Skadden had two conversations during the course of the morning on March 12, 2019, during which they discussed the parties’ respective positions on the standstill provisions and other minority stockholder protection terms, and Sidley proposed several potential alternative approaches for the standstill provision. At the conclusion of these calls, the representatives of Skadden requested that Mr. Goudet’s proposal be submitted to the Special Committee for its consideration.

Benchmark lumber pricing reached a low of US$245/mfbm in late January, recovered through the balance of the quarter to finish at US$303/mfbm, and averaged US$271/mfbm for the period. We expect pricing to be moderately stronger for the balance of the year, as Chinese consumption stabilizes and seasonal increases in U.S. construction activity support demand for lumber. However, we are cautious about the potential effects of uncertainty surrounding lumber trade with the U.S. Following expiry of the Softwood Lumber Agreement on October 12, 2015, lumber producers entered a year-long period during which Canadian shipments to the U.S. will not be subject to any export charges or legal actions, due to a one-year standstill provision included in the agreement. After October 12, 2016, the U.S. will be in a position to file lawsuits and pursue anti-dumping and countervail duties against Canadian producers. Representatives of the Canadian government have initiated preliminary discussions with their counterparts in the Office of the United States Trade Representative (USTR), with the intent of reaching an agreement before the expiry of the standstill provision. We are supportive of these discussions.

Benchmark lumber pricing was relatively unchanged through the quarter and averaged US$320/mfbm for the period. We expect pricing to be more volatile for the balance of the year, due to uncertainty surrounding lumber trade with the U.S. Following expiry of the Softwood Lumber Agreement on October 12, 2015, lumber producers entered a one-year period during which Canadian shipments to the U.S. would not be subject to any export charges or legal actions, due to a standstill provision included in the agreement. After October 12, 2016, the U.S. industry was in a position to file lawsuits and pursue anti-dumping and countervail duties against Canadian producers. Representatives of the Canadian government continued discussions with their counterparts in the Office of the United States Trade Representative (USTR), following the expiry of the standstill provision. We are supportive of the ongoing work to reach an agreement.