Covenants of Each Stockholder. Each Stockholder covenants and agrees as follows: (i) At every meeting of the stockholders of Target called to seek the Target Stockholder Approval, at every adjournment or postponement thereof, and in each other circumstance upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement or any of the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, is sought, such Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, the Subject Shares in favor of the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revoked. (ii) Such Stockholder hereby irrevocably grants to, and appoints, Parent and any individual designated in writing by Parent, and each of them individually, as such Stockholder’s proxy and attorney-in-fact (with full power of substitution and resubstitution), for and in the name, place and stead of such Stockholder, to vote the Subject Shares, or grant a consent or approval in respect of the Subject Shares, in a manner consistent with this Section 3. Such Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Stockholder under this Agreement. Such Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Such Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation Law. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares. (b) At any meeting of the stockholders of Target or at any adjournment or postponement thereof or in any other circumstances upon which such Stockholder’s vote, consent or other approval is sought, such Stockholder shall vote (or cause to be voted) the Subject Shares against (and shall not provide consents in favor of) (i) any consolidation, combination, sale of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby), (ii) any Alternative Transaction or Target Alternative Proposal (including any Superior Proposal), and (iii) any amendment of the Target Charter or the Target By-Laws or other proposal or transaction involving Target or any of its Subsidiaries, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay or nullify any provision of the Merger Agreement or any of the transactions contemplated hereby or thereby, or change in any manner the voting rights of any class of capital stock of Target. Such Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b). (c) Except as set forth in this Agreement, such Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in (collectively, “Transfer”), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Subject Shares to any Person, (ii) grant any proxies, options or right of first offer or right of first refusal with respect to the Subject Shares, (iii) enter into, or propose to enter into, any voting arrangement, whether by proxy, voting agreement, voting trust or otherwise, with respect to any Subject Shares, (iv) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreement. (d) Such Stockholder shall not, and shall use its commercially reasonable best efforts to cause any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such Stockholder not to, directly or indirectly, (i) solicit, initiate, or take any action that it knows or reasonably should know would facilitate or encourage the submission of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiation with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore with respect to, or that would reasonably be expected to lead to, an Alternative Transaction or an Alternative Proposal. (e) Such Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or any of the transactions contemplated hereby or thereby, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion), except to the extent required by applicable Law. (f) Such Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights (including under the Delaware General Corporation Law) in connection with the Merger Agreement and the transactions contemplated thereby. (g) Notwithstanding anything to the contrary in this Agreement and in this Section 3 in particular, such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Shares.
Appears in 2 contracts
Sources: Stockholder Voting Agreement (Rodman & Renshaw Capital Group, Inc.), Stockholder Voting Agreement (Hudson Holding Corp)
Covenants of Each Stockholder. Each Stockholder covenants and agrees as follows:
(i) At every any meeting of the stockholders of Target the Company called to seek the Target Stockholder Approval, at every adjournment Approval or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement Agreement, the Merger or any of other transaction contemplated by the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, Agreement is sought, such Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) shall vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, the Subject Shares in favor of the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Stockholder represents that any proxies heretofore given in respect ) all of the Subject Shares of such Stockholder in favor of granting the Stockholder Approval and any other actions presented to stockholders of the Company that may still be are necessary and desirable in effect are not irrevocablefurtherance of the Merger, and such proxies are hereby revokedthe Stockholder Approval or any other transactions contemplated by the Merger Agreement.
(ii) Such Each Stockholder hereby irrevocably grants to, and appoints, Parent and Sub, or any of them, and any individual designated in writing by Parentany of them, and each of them individually, as such Stockholder’s proxy and attorney-in-fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such Stockholder, to vote the such Stockholder’s Subject Shares, or grant a consent or approval in respect of the such Subject Shares, in a manner consistent with this Section 31.03. Such Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Stockholder’s execution and delivery of this Agreement. Such Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii1.03(a)(ii) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Stockholder under this Agreement. Such Stockholder hereby further affirms that the irrevocable this proxy is coupled with an interest and may under no circumstances be revokedrevoked (except that such proxy is automatically revoked and terminated upon termination of this Agreement in accordance with Section 1.04). Such Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation Law. The irrevocable DGCL (except that such proxy granted hereunder shall is automatically terminate revoked and terminated upon the termination of this AgreementAgreement in accordance with Section 1.04). Such Stockholder hereby represents that any proxies heretofore given by it in respect of the Subject Shares with respect to the matters covered by this Section 1.03(a)(ii), if any, are revocable, and hereby revokes such proxies. Upon delivery of written request to do so by Parent, such Subject Stockholder shall as promptly as practicable execute and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii1.03(a)(ii); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares.
(b) At any meeting of the stockholders of Target the Company or at any adjournment or postponement thereof or in any other circumstances upon which such Stockholder’s their vote, consent or other approval is sought, such Stockholder shall vote (or cause to be voted) the its Subject Shares against (and shall not provide consents in favor of) (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (the Company or any other than the Merger Agreement and the transactions contemplated thereby)similar transaction, (ii) any Alternative Transaction Takeover Proposal or Target Alternative any action which is a component of any Takeover Proposal (including any Superior Proposal), and (iii) any amendment of the Target Charter Company Certificate or the Target By-Laws Company Bylaws or other proposal or transaction involving Target the Company or any of its SubsidiariesSubsidiary, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay prevent or nullify any provision of the Merger Agreement or any of the other transactions contemplated hereby or thereby, by the Merger Agreement or change in any manner the voting rights of any class of capital stock of TargetCompany Common Stock. Such Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b)foregoing.
(c) Except as Such Stockholder hereby agrees that, in the event (i) of any stock dividend, stock split, recapitalization, reclassification, combination or exchange of shares of capital stock or other equity interests or voting securities of the Company of, or affecting, the Subject Shares, (ii) such Stockholder purchases or otherwise acquires beneficial ownership of or an interest in any shares of capital stock or other equity interests or voting securities of the Company after the execution of this Agreement (including by conversion, exercise or exchange) or (iii) such Stockholder voluntarily acquires the right to vote or share in the voting of any shares of capital stock or other equity interests or voting securities of the Company other than the Subject Shares (collectively, the “New Shares”), such Stockholder shall deliver promptly to Parent written notice of its acquisition of New Shares which notice shall state the number of New Shares so acquired. Such Stockholder agrees that any New Shares acquired or purchased by such Stockholder shall be subject to the terms of this Agreement, including the representations and warranties set forth in Section 1.01 and the covenants set forth in Section 1.03, and shall constitute Subject Shares to the same extent as if those New Shares were owned by such Stockholder on the date of this Agreement.
(d) Except pursuant to this Agreement, prior to the receipt of the Stockholder Approval, such Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) directly or indirectly: (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in (collectively, “Transfer”), or enter into any Contract, option or other arrangement or understanding (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Subject Shares to any Personperson other than pursuant to the Merger, except for a Permitted Transfer (as defined below), (ii) grant any proxies, options or right of first offer or right of first refusal with respect to the Subject Shares, (iii) enter into, or propose to enter into, into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any Subject Shares, (iviii) take any other action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have would in any way restrict, limit or interfere with the effect performance of preventing or disabling such Stockholder from performing its Stockholder’s obligations hereunder or the transactions contemplated hereby or (viv) commit or agree to take any of the foregoing actions in clauses (i)actions. For purposes hereof, (ii), (iii) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) a “Permitted Transfer” is any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer made by a Stockholder (including any Transfer resulting from death) to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party person who executes a joinder to such Transfer or arrangement executes this Agreement (or agreeing to become a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its termsStockholder hereunder; provided, however, that, except in the case that such person is a Stockholder as of the date of this Agreement, notwithstanding anything to the contrary contained in this Agreement, (i) the Subject Shares of such person shall consist only of the Subject Shares transferred to such person in such Permitted Transfer or arrangementand any shares described in Section 1.03(c)(i) that are issued on account of the Subject Shares so transferred, (ii) the representations and warranties contained in the second sentence of Section 1.01(d) shall not be applicable to such Stockholder person, (iii) such person makes the other representations and warranties contained in Section 1.01(d) only as to the Subject Shares transferred to such person in such Permitted Transfer and (iv) such person shall continue to not be liable for the act or omission of any breach by such transferee other Stockholder hereunder. For purposes of its agreements and covenants under this Agreement, the term “person” shall have the meaning set forth in the Merger Agreement.
(de) Such Each Stockholder shall notnot (nor shall it authorize or permit any of its directors, and shall use its commercially reasonable best efforts to cause any managerofficers, officeremployees, director, employee, agent, representative, consultantinvestment bankers, financial advisoradvisors, attorneyattorneys, accountantaccountants or other advisors, other agent agents or controlled affiliate of representatives (collectively, “Representatives”), acting on such Stockholder not Stockholder’s behalf, to), directly or indirectlyindirectly through another person, (i) solicit, initiateinitiate or knowingly encourage, induce or take facilitate any action Takeover Proposal or any inquiry or proposal that it knows could reasonably be expected to lead to a Takeover Proposal or reasonably should know would facilitate or encourage the submission of, any Acquisition Proposal, (ii) enter into into, continue or otherwise participate in any discussions or negotiation withnegotiations regarding, or furnish to any person any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, any Takeover Proposal or knowingly assist, participate in, facilitate any inquiry or encourage any effort by any Third Party proposal that is seeking could reasonably be expected to make, or has made, an Acquisition lead to a Takeover Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Such Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, Representatives to, immediately cease immediately and cause to be terminated any and all existing discussionsdiscussions or negotiations, conversationson such Stockholder’s behalf, negotiations and other communications with any Person (other than any party to the Merger Agreement) person conducted heretofore with respect to, to any Takeover Proposal or any inquiry or proposal that would could reasonably be expected to lead toto a Takeover Proposal. Notwithstanding anything to the contrary contained in this Section 1.03(e), an Alternative Transaction nothing contained in this Section 1.03(e) shall limit the ability of the Company or an Alternative Proposalits Representatives (as defined in the Merger Agreement) to act, including their ability to act in accordance with Section 4.02 of the Merger Agreement.
(ef) Such Stockholder shall consult with Parent before issuing, and give Parent the opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement or the Merger Agreement, including the Merger, and shall not issue any such press release or make any other such public statement with respect prior to this Agreementsuch consultation, the Merger Agreement or any of the transactions contemplated hereby or thereby, without the prior written consent of Parent (which consent except as such Stockholder may reasonably conclude may be withheld in Parent’s sole discretion), except to the extent required by applicable Lawlaw, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system.
(fg) Such Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights (including under Section 262 of the Delaware General Corporation Law) DGCL in connection with the Merger Agreement and the transactions contemplated therebyMerger.
(g) Notwithstanding anything to the contrary in this Agreement and in this Section 3 in particular, such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Shares.
Appears in 2 contracts
Sources: Stockholder Agreement (Unilever N V), Stockholder Agreement (Alberto-Culver CO)
Covenants of Each Stockholder. Each Stockholder Stockholder, severally and not jointly, covenants and agrees as follows:
(i1) At every any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of Target the Company called to seek the Target Company Stockholder Approval, at every adjournment Approval or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement Agreement, any other Transaction Agreement, the Merger or any of the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, other Transaction is sought, such the Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Company Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revokedApproval.
(ii2) Such The Stockholder hereby irrevocably grants to, and appoints, Parent Parent, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or any of them, and any individual designated in writing by Parentany of them, and each of them individually, as such the Stockholder’s 's proxy and attorney-in-fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such the Stockholder, to vote the Subject SharesShares of the Stockholder, or grant a consent or approval in respect of the Subject Shares, Shares of the Stockholder in a manner consistent with this Section 3. Such The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii3(a) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such the Stockholder under this Agreement. Such The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Such The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation LawDGCL. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute Sections 3(a) and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth 3(b) in this accordance with Section 3(a)(ii); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares5.
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the stockholders of Target Company or at any adjournment or postponement thereof or in any other circumstances upon which such the Stockholder’s 's vote, consent or other approval is sought, such the Stockholder shall vote (or cause to be voted) the Subject Shares of the Stockholder against (and shall not provide consents in favor of) (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby)Company, (ii) any Alternative Transaction or Target Alternative Acquisition Proposal (including any Superior Proposal), and (iii) any amendment of the Target Company Charter or the Target Company By-Laws laws or other proposal or transaction involving Target the Company or any of its SubsidiariesCompany Subsidiary, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay prevent or nullify any provision of the Merger Agreement or any of other Transaction Agreement, the transactions contemplated hereby Merger or thereby, any other Transaction or change in any manner the voting rights of any class of capital stock of Targetthe Company. Such The Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b)foregoing.
(c) Except Other than this Agreement and except as set forth provided in this Agreementthe next sentence, such the Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) not (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in ) (collectively, “"Transfer”"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Subject Shares to any Person, person other than pursuant to the Merger or (ii) grant any proxies, options or right of first offer or right of first refusal with respect to the Subject Shares, (iii) enter into, or propose to enter into, into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any Subject Shares, (iv) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) Shares and shall not commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv)actions. Notwithstanding anything the foregoing, the following Transfers are expressly permitted:
(w) Transfers of Subject Shares to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit any other Stockholder;
(x) Transfers of up to an aggregate of 40,000 Subject Shares (for all Stockholders) to one or more members of one or more Stockholders' family and/or to one or more charities;
(y) in addition to any Transfer in the case Transfers permitted pursuant to clause (x) above, Transfers of Subject Shares to (1) a transferee for estate planning purposes, (2) members of such Stockholder’s death, by will 's family or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust trusts established for the benefit of any immediate such family member members, or (3) a charitable foundation or trust, in each case only following the due execution and delivery to Parent by each such transferee of a counterpart to this Agreement; and
(z) upon the death of the Stockholder, the Transfer of Subject Shares to the executor of the estate of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of to such Stockholder; in each case's heirs, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreement.
(d) Such Stockholder shall not, and shall use its commercially reasonable best efforts to cause any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such Stockholder not to, directly or indirectly, (i) solicit, initiatedevisees, or take any action that it knows or reasonably should know would facilitate or encourage the submission of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiation with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore with respect to, or that would reasonably be expected to lead to, an Alternative Transaction or an Alternative Proposallegatees.
(e) Such Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or any of the transactions contemplated hereby or thereby, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion), except to the extent required by applicable Law.
(f) Such Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights (including under the Delaware General Corporation Law) in connection with the Merger Agreement and the transactions contemplated thereby.
(g) Notwithstanding anything to the contrary in this Agreement and in this Section 3 in particular, such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Shares.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder Stockholder, severally and not jointly, covenants and agrees agrees, except as set forth on Schedule A hereto, as follows:
(ia) At every any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of Target Parent called to seek the Target Parent Stockholder Approval, at every adjournment Approval or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the issuance of shares of Parent Common Stock in connection with the Merger or any other transaction contemplated by the Merger Agreement or any of the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, is sought, such the Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) vote (or cause to be voted), including by executing a written consent solicitation if requested by ParentTarget, vote (or cause to be voted) the Parent Subject Shares of the Stockholder in favor of the issuance of shares of Parent Common Stock in connection with the Merger Agreement and the other transactions contemplated thereby, and take or any other actions reasonably requested transaction contemplated by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revokedMerger Agreement.
(iib) Such The Stockholder hereby irrevocably grants to, and appoints, Parent Target and E. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., or any of them, and any individual designated in writing by Parentany of them, and each of them individually, as such the Stockholder’s 's proxy and attorney-in-in- fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such the Stockholder, to vote the Parent Subject SharesShares of the Stockholder, or grant a consent or approval in respect of the Parent Subject SharesShares of the Stockholder, in a manner consistent favor of the issuance of shares of Parent Common Stock in connection with the Merger or any other transaction contemplated by the Merger Agreement. The Stockholder understands and acknowledges that Target is entering into the Merger Agreement in reliance upon the Stockholder's execution and delivery of this Section 3Agreement. Such The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii3(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such the Stockholder under this Agreement. Such The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Such The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation LawDGCL. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute Sections 3(a) and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth 3(b) in this accordance with Section 3(a)(ii); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares.
(b) At any meeting of the stockholders of Target or at any adjournment or postponement thereof or in any other circumstances upon which such Stockholder’s vote, consent or other approval is sought, such Stockholder shall vote (or cause to be voted) the Subject Shares against (and shall not provide consents in favor of) (i) any consolidation, combination, sale of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby), (ii) any Alternative Transaction or Target Alternative Proposal (including any Superior Proposal), and (iii) any amendment of the Target Charter or the Target By-Laws or other proposal or transaction involving Target or any of its Subsidiaries, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay or nullify any provision of the Merger Agreement or any of the transactions contemplated hereby or thereby, or change in any manner the voting rights of any class of capital stock of Target. Such Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b)4.
(c) Except as set forth in this Agreement, such The Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative use all reasonable efforts to transfer the economic interest in (collectively, “Transfer”)take, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Subject Shares to any Person, (ii) grant any proxies, options or right of first offer or right of first refusal with respect to the Subject Shares, (iii) enter into, or propose to enter into, any voting arrangement, whether by proxy, voting agreement, voting trust or otherwise, with respect to any Subject Shares, (iv) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreement.
(d) Such Stockholder shall not, and shall use its commercially reasonable best efforts to cause any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such Stockholder not to, directly or indirectly, (i) solicit, initiate, or take any action that it knows or reasonably should know would facilitate or encourage the submission of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiation with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all existing discussionsthings necessary, conversationsproper or advisable to consummate and make effective, negotiations in the most expeditious manner practicable, the Merger and the other communications with any Person (other than any party to transactions contemplated by the Merger Agreement) conducted heretofore with respect to, or that would reasonably be expected to lead to, an Alternative Transaction or an Alternative Proposal.
(e) Such . The Stockholder shall not issue any press release or make any other public statement with respect to this the Merger Agreement, the Merger Agreement or any of other transaction contemplated by the transactions contemplated hereby or thereby, Merger Agreement without the prior written consent of Parent (which consent Target, except as may be withheld in Parent’s sole discretion), except to the extent required by applicable Applicable Law.
(fd) Such The Stockholder hereby waivesconsents to and approves the actions taken by the Board of Directors of Parent in approving the Merger Agreement and this Agreement, and agrees not to exercise or assertthe Merger, any appraisal or similar rights (including under the Delaware General Corporation Law) issuance of shares of Parent Common Stock in connection with the Merger Agreement and the other transactions contemplated therebyby the Merger Agreement.
(g) Notwithstanding anything to the contrary in this Agreement and in this Section 3 in particular, such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Shares.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder covenants and Until the termination of this Agreement in accordance with Section 5, each Stockholder, in its capacity as such, agrees as follows:
(ia) At every meeting of the stockholders of Target called to seek the Target Stockholder Approval, at every adjournment or postponement thereof, and in each other circumstance upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement or any of the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, is sought, such Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, the Subject Shares in favor of the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revoked.
(ii) Such Stockholder hereby irrevocably grants to, and appoints, Parent and any individual designated in writing by Parent, and each of them individually, as such Stockholder’s proxy and attorney-in-fact (with full power of substitution and resubstitution), for and in the name, place and stead of such Stockholder, to vote the Subject Shares, or grant a consent or approval in respect of the Subject Shares, in a manner consistent with this Section 3. Such Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Stockholder under this Agreement. Such Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Such Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation Law. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares.
(b) At any meeting of the stockholders of Target Special Meeting or at any adjournment adjournment, postponement or postponement continuation thereof or in any other circumstances occurring prior to the Special Meeting upon which such Stockholder’s vote, consent a vote or other approval with respect to the Merger and the Merger Agreement is soughtsought by the Company from the Company’s stockholders, such each Stockholder shall vote (or cause to be voted) the Subject Shares against (and shall not provide consents in favor of) held by such Stockholder (i) any consolidation, combination, sale in favor of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up the approval of or by Target (other than the Merger Agreement and the transactions contemplated thereby), approval and adoption of the Merger Agreement; and (ii) except with the written consent of Parent, against any Alternative Transaction Proposal. Any such vote shall be cast in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the results of such vote. Each Stockholder agrees not to enter into any agreement or Target Alternative Proposal (including commitment with any Superior Proposal), and (iii) any amendment Person the effect of which would be inconsistent with or violative of the Target Charter or the Target By-Laws or other proposal or transaction involving Target or any of its Subsidiaries, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay or nullify any provision of the Merger Agreement or any of the transactions contemplated hereby or thereby, or change in any manner the voting rights of any class of capital stock of Target. Such Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements provisions and agreements contained in this Section 3(b3(a).
(b) Each Stockholder hereby appoints Parent and any designee of Parent, and each of them individually, its proxies and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Subject Shares in accordance with Section 3(a). This proxy is given to secure the performance of the duties of each Stockholder under this Agreement. Each Stockholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy and power of attorney. The proxy and power of attorney granted hereunder by each Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by each Stockholder with respect to the matters contemplated by Section 3(a). The power of attorney granted by each Stockholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of such Stockholder. The proxies and powers of attorney granted hereunder shall cease to be irrevocable and shall terminate upon the termination of this Agreement.
(c) Except as set forth in this AgreementEach Stockholder agrees not to, such Stockholder shall notdirectly or indirectly, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) (i) sell, transfer, tender, pledge, hypothecateencumber, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in (collectively, a “Transfer”), ) or enter into any Contractagreement, option or other arrangement (including any profit sharing arrangement) with respect to, or consent to the a Transfer of, or propose convert or agree to Transferconvert, any or all of the Subject Shares to any Person, other than in accordance with the Merger Agreement, except in each case for Transfers (x) to any other Stockholder or (y) to any Person who executes and delivers to Parent and Merger Sub a voting agreement identical in form to this Agreement (except for the identity of the Stockholder) prior to or concurrently with the consummation of such Transfer or (ii) grant any proxies, options or right of first offer or right of first refusal proxies (other than the Company proxy card in connection with respect the Special Meeting if and to the extent such proxy is consistent with the Stockholder’s obligations under Section 3(a) hereof), deposit any Subject Shares, (iii) Shares into any voting trust or enter into, or propose to enter into, into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any of the Subject Shares, in any case where such action would be inconsistent with or violative of the provisions and agreements contained in Section 3(a) hereof. Such Stockholder further agrees (ivA) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) not to commit or agree to take any of the foregoing actions in clauses that are prohibited by clause (i), (ii), (iii) or (iv). Notwithstanding anything to the contrary in ii) of the preceding sentencesentence and (B) not to take any action that would have the effect of preventing, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s deathimpeding, by will interfering with or by the laws of interstate succession, or (y) any Transfer by a Stockholder adversely affecting its ability to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by perform its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants obligations under this Agreement.
(d) Such Stockholder shall not, nor shall such Stockholder permit any controlled affiliate of such Stockholder to, nor shall such Stockholder act in concert with or permit any controlled affiliate to act in concert with any Person to make, or in any manner participate in, directly or indirectly, a “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any shares of Common Stock intended to facilitate any Alternative Proposal or to cause stockholders of the Company not to vote to approve and adopt the Merger Agreement. Such Stockholder shall not, and shall use its commercially reasonable best efforts to cause direct any manager, officer, director, employee, agent, representative, consultant, financial advisorinvestment banker, attorney, accountant, other agent or controlled affiliate other adviser or representative of such Stockholder not to, directly initiate or indirectly, solicit (iincluding by way of furnishing non-public information) solicit, initiateor knowingly take any other action that constitutes, or take any action that it knows or is reasonably should know would facilitate or encourage the submission of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiation with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore with respect to, or that would reasonably be expected to lead to, an Alternative Transaction Proposal or engage in any substantive discussions or negotiations concerning, or provide any non-public information with respect to, an Alternative Proposal. Each Stockholder hereby represents that, as of the date hereof, it is not engaged in substantive discussions or negotiations with any party with respect to any Alternative Proposal.
(e) Such Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or any of the transactions contemplated hereby or thereby, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion), except to the extent required by applicable Law.
(f) Such Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights (including under the Delaware General Corporation Law) in connection with the Merger Agreement and the transactions contemplated thereby.
(g) Notwithstanding anything to the contrary in this Agreement Section 3, if and in this Section 3 in particularto the extent that, such Stockholder is only executing this Agreement in his capacity as pursuant to the Beneficial Owner, or owner of record, terms of the Subject SharesMerger Agreement, the Company is permitted to provide information to and engage in substantive discussions and negotiations with any Person regarding an Alternative Proposal, then the Stockholders may provide information to and engage in substantive discussions and negotiations with such Person and its representatives.
Appears in 1 contract
Sources: Voting Agreement (Burlington Coat Factory Warehouse Corp)
Covenants of Each Stockholder. Each Stockholder Stockholder, severally and not jointly, covenants and agrees as follows:
(i1) At every any meeting of the stockholders of Target the Company called to seek vote upon the Target Stockholder Approval, at every adjournment Merger and the Merger Agreement or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement Agreement, the Merger or any of other transaction contemplated by the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, Agreement is sought, such the Stockholder shall, (A) including by executing a written consent if a meeting is heldrequested by Parent, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, ) the Subject Shares of the Stockholder in favor of the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revokedMerger Agreement.
(ii2) Such IRREVOCABLE PROXY The Stockholder hereby irrevocably grants to, and appoints, Parent Parent, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, or any of them, and any individual designated in writing by Parentany of them, and each of them individually, as such the Stockholder’s proxy and attorney-in-fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such the Stockholder, to vote the Subject SharesShares of the Stockholder, or grant a consent or approval in respect of the Subject Shares, Shares of the Stockholder in a manner consistent with this Section 3. Such The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholders’ execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii3(a) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such the Stockholder under this Agreement. Such The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Such The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereofin accordance herewith. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e78.355(5) of the Delaware General Corporation LawNevada Revised Statutes. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute Sections 3(a) and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii3(b); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares.
(b) At any meeting of the stockholders of Target the Company or at any adjournment or postponement thereof or in any other circumstances upon which such the Stockholder’s vote, consent or other approval (including by written consent) is sought, such the Stockholder shall vote (or cause to be voted) the Subject Shares against of the Stockholder against, and shall not consent to (and shall cause the Subject Shares of the Stockholder not provide consents in favor of) to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, mergerjoint venture, binding share exchange, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby)Company, (ii) any Alternative Transaction or Target Alternative Company Takeover Proposal (including any Superior Proposal), and as defined in Section 5.02(e) of the Merger Agreement) or (iii) any amendment of the Target Charter articles of incorporation or by-laws of the Target By-Laws Company or other proposal proposal, action or transaction involving Target the Company or any of its Subsidiariesstockholders, which amendment or other proposal proposal, action or transaction would reasonably be expected to in any manner impede, frustrate, preventinterfere with, delay delay, prevent or nullify any provision of the Merger Agreement, the Merger or any other transaction contemplated by the Merger Agreement or any the consummation of the transactions contemplated hereby or therebyby this Agreement, or change in any manner the voting rights of any class of capital stock of Targetthe Company (collectively, “Frustrating Transactions”). Such The Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b)foregoing.
(c) Except as set forth in this Agreement, such The Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) not (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in ) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, of any Subject Shares or any interest therein, to any Personperson (other than, if the transactions contemplated by the Merger Agreement are consummated, by operation of law in the Merger), (ii) grant any proxies, options or right of first offer or right of first refusal with respect other than pursuant to the Subject Sharesexpress terms of this Agreement, (iii) enter into, or propose to enter into, into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any Subject Shares, Shares or (iviii) take any action that would make which would, or could reasonably be expected to result in a diminution of the voting power represented by any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) Subject Shares, and shall not commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreementactions.
(d) Such The Stockholder shall not, and nor shall use its commercially reasonable best efforts to cause he authorize or permit any manageremployee of, officeror any investment banker, directorattorney or other adviser or representative of, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such the Stockholder not to, directly or indirectly, (i) solicit, initiateinitiate or encourage, or take any other action that it knows to facilitate, any inquiries with respect to a potential Company Takeover Proposal or reasonably should know would facilitate Frustrating Transaction or encourage the submission of, of any Acquisition ProposalCompany Takeover Proposal or Frustrating Transaction, (ii) enter into any agreement with respect to any Company Takeover Proposal or Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiation withnegotiations regarding, or furnish to any person any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, or knowingly assist, assist or participate in, facilitate or encourage in any effort or attempt by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore person with respect to, any Company Takeover Proposal or Frustrating Transaction. The Stockholder promptly shall advise Parent orally and in writing of any Company Takeover Proposal or Frustrating Transaction or inquiry made to the Stockholder with respect to or that would reasonably be expected to lead toto a Company Takeover Proposal or Frustrating Transaction, an Alternative the identity of the person making or initiating any such Company Takeover Proposal, Frustrating Transaction or an Alternative inquiry and the material terms of any such Company Takeover Proposal, Frustrating Transaction or inquiry. The Stockholder shall keep Parent informed of the status and details (including amendments or proposed amendments) of any such Company Takeover Proposal, Frustrating Transaction or inquiry.
(e) Such The Stockholder shall not not, nor shall the Stockholder authorize or permit any investment banker, attorney or other adviser or representative of, the Stockholder to, issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any other transactions contemplated by this Agreement or any of the transactions contemplated hereby or thereby, Merger Agreement without the prior written consent of Parent (which consent Parent, except as may be withheld in Parent’s sole discretion), except to the extent required by applicable Lawlaw.
(f) Such The Stockholder shall use his reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most reasonably expeditious manner practicable, the transactions contemplated by this Agreement.
(g) The Stockholder hereby waiveswaives any rights to dissent from the Merger that the Stockholder may have, and agrees not to exercise commence or assertparticipate in, and to take all actions necessary to opt out of any class in any class action with respect to, any appraisal claim, derivative or similar rights otherwise, against the Company (including under or any of its respective successors) relating to the Delaware General Corporation Law) in connection with negotiation, execution and delivery of this Agreement or the Merger Agreement and or the consummation of the Merger or any of the other transactions contemplated therebyin this Agreement or the Merger Agreement.
(gh) Notwithstanding anything to As soon as practicable after the contrary in date of this Agreement and in this any event prior to the Effective Time (as defined in Section 3 1.03 of the Merger Agreement), each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇ shall enter into a stockholders agreement, in particularform and substance mutually satisfactory to Parent and each such Stockholder, regarding certain restrictions on the transfer by each such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Sharesshares of Parent Common Stock received by such Stockholder in the Merger.
Appears in 1 contract
Sources: Stockholders Agreement (Coast Hotels & Casinos Inc)
Covenants of Each Stockholder. Each Stockholder Subject to Section 5 hereof, each Stockholder, severally and not jointly, covenants and agrees as follows:
(ia) The Stockholder hereby permits the Company, Parent and Sub to publish and disclose in the Proxy Materials (including all documents and schedules filed with the SEC) its identity and ownership of the Subject Shares and the nature of its commitments, arrangements and understandings under this Agreement.
(1) At every any meeting of the stockholders of Target the Company called to seek the Target approval of the Merger Agreement and the Merger (the "Company Stockholder Approval, at every adjournment ") or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement Agreement, any other Operative Agreement, the Merger or any of the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, other Transaction is sought, such the Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) shall vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, ) the Subject Shares of the Stockholder in favor of granting the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Company Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revokedApproval.
(ii2) Such The Stockholder hereby irrevocably grants to, and appoints, Parent Robert P. Freeman and Murry N. Gunty, or any of them, and any individual designated in writing by Parent▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ated ▇▇ ▇▇▇▇▇▇▇ ▇▇ any of them, and each of them individually, as such the Stockholder’s 's proxy and attorney-in-fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such the Stockholder, to vote the Subject SharesShares of the Stockholder, or grant a consent or approval in respect of the Subject Shares, Shares of the Stockholder in a manner consistent with this Section 3. Such The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii3(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such the Stockholder under this Agreement. Such The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked, except as provided herein. Such The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation LawDGCL. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute Sections 3(b) and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii3(c); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares.
(bc) At any meeting of the stockholders of Target the Company or at any adjournment or postponement thereof or in any other circumstances upon which such the Stockholder’s 's vote, consent or other approval is sought, such the Stockholder shall vote (or cause to be voted) the Subject Shares against (and shall not provide consents in favor of) (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby)Company, (ii) any Alternative Transaction or Target Alternative Proposal takeover proposal (including any Superior Proposal), as defined in the Merger Agreement) and (iii) any amendment of the Target Charter certificate of incorporation or by-laws of the Target By-Laws Company or other proposal or transaction involving Target the Company or any of its Subsidiariessubsidiaries, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay prevent or nullify any provision of any Operative Agreement, the Merger Agreement or any of the transactions contemplated hereby or thereby, other Transaction or change in any manner the voting rights of any class of capital stock of Targetthe Company. Such The Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b)foregoing.
(cd) Except as set forth in Other than this Agreement, such the Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) not (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in ) (collectively, “"Transfer”"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Subject Shares to any Person, person other than pursuant to the Merger or (ii) grant any proxies, options or right of first offer or right of first refusal with respect to the Subject Shares, (iii) enter into, or propose to enter into, into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any Subject Shares, (iv) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) Shares and shall not commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreementactions.
(de) Such The Stockholder shall not, and nor shall use its commercially reasonable best efforts to cause it authorize or permit any manageremployee of, officeror any investment banker, directorattorney or other adviser or representative of, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such the Stockholder not to, directly or indirectly, (i) directly or indirectly solicit, initiate, or take any action that it knows or reasonably should know would facilitate initiate or encourage the submission of, any Acquisition Proposaltakeover proposal, (ii) enter into any agreement with respect to any takeover proposal or (iii) directly or indirectly participate in any discussions or negotiation withnegotiations regarding, or furnish to any person any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore with respect to, or take any other action to facilitate any inquiries or the making of any proposal that would constitutes, or may reasonably be expected to lead to, an Alternative Transaction any takeover proposal. The Stockholder promptly shall advise Parent orally and in writing of any takeover proposal or an Alternative Proposal.
(e) Such inquiry made to the Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, or that could reasonably be expected to lead to any takeover proposal and the Merger Agreement material terms of any such takeover proposal or any of the transactions contemplated hereby or thereby, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion), except to the extent required by applicable Lawinquiry.
(f) Such The Stockholder shall use its reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other Transactions.
(g) The Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement, the Merger and the other Transactions. The Stockholder hereby waives, and agrees not to exercise or assertassent, any appraisal or similar rights (including under the Delaware General Corporation Law) Section 262 in connection with the Merger Agreement and the transactions contemplated therebyMerger.
(g) Notwithstanding anything to the contrary in this Agreement and in this Section 3 in particular, such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Shares.
Appears in 1 contract
Sources: Support Agreement (Lazard Freres Real Estate Investors LLC)
Covenants of Each Stockholder. Each Stockholder Stockholder, severally and not jointly, covenants and agrees as follows:
(i1) At every any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of Target called to seek the Target Stockholder Approval, at every adjournment Approval or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement Agreement, the Merger or any of other transaction contemplated by the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, Agreement is sought, such the Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Target Subject Shares of the Stockholder in favor of adoption of the Merger Agreement and approval of the Merger and any other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revokedMerger Agreement.
(ii2) Such The Stockholder hereby irrevocably grants to, and appoints, Parent and Mark Moran and C. Andrew Johns, or any individual designated of them, and any individu▇▇ ▇▇▇▇▇▇▇ted in writing by Parentw▇▇▇▇▇▇ ▇▇ ▇▇y of them, and each of them individually, as such the Stockholder’s 's proxy and attorney-in-fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such the Stockholder, to vote the Target Subject SharesShares of the Stockholder, or grant a consent or approval in respect of the Target Subject SharesShares of the Stockholder, in a manner consistent with favor of adoption of the Merger Agreement and approval of the Merger and any other transactions contemplated by the Merger Agreement. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's execution and delivery of this Section 3Agreement. Such The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii3(a) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such the Stockholder under this Agreement. Such The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Such The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation LawDGCL. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute Sections 3(a) and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth 3(b) in this accordance with Section 3(a)(ii); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares4.
(b) At any meeting of Other than this Agreement, the stockholders of Target or at any adjournment or postponement thereof or in any other circumstances upon which such Stockholder’s vote, consent or other approval is sought, such Stockholder shall vote (or cause to be voted) the Subject Shares against (and shall not provide consents in favor of) (i) any consolidation, combination, sale of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby), (ii) any Alternative Transaction or Target Alternative Proposal (including any Superior Proposal), and (iii) any amendment of the Target Charter or the Target By-Laws or other proposal or transaction involving Target or any of its Subsidiaries, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay or nullify any provision of the Merger Agreement or any of the transactions contemplated hereby or thereby, or change in any manner the voting rights of any class of capital stock of Target. Such Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b).
(c) Except as set forth in this Agreement, such Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in ) (collectively, “"Transfer”"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Target Subject Shares to any Personperson (other than pursuant to the Merger), unless and until such person agrees, pursuant to a writing in customary form to which Parent is a party or a stated third-party beneficiary, to be bound by the terms of this Agreement, including without limitation the terms of Section 3(a)(2), to the same extent, and in the same manner, as if such person were explicitly named a Stockholder hereunder or (ii) grant any proxies, options or right of first offer or right of first refusal with respect to the Subject Shares, (iii) enter into, or propose to enter into, into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any Target Subject Shares, (iv) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) Shares and shall not commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv)actions. Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreement.
(d) Such The Stockholder shall not, and nor shall use its commercially reasonable best efforts to cause such Stockholder permit any managerentity under such Stockholder's control to, officerdeposit any Target Subject Shares in a voting trust.
(c) The Stockholder shall not, directornor shall it authorize or permit any employee or affiliate of, employee, agent, representative, consultantor any investment banker, financial advisor, attorney, accountantaccountant or other representative of, other agent or controlled affiliate of such the Stockholder not to, directly or indirectlyindirectly through another person, (i) solicit, initiateinitiate or encourage (including by way of furnishing information), or take any other action that it knows or reasonably should know would facilitate or encourage the submission ofto facilitate, any Acquisition Proposalinquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to , any Takeover Proposal or (ii) enter into into, continue or otherwise participate in any discussions or negotiation withnegotiations regarding, or furnish to any information relating to the Company or person (other than Parent and any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or affiliates and representatives) any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore information with respect to, any Takeover Proposal. The Stockholder promptly shall advise Parent orally and in writing of any Takeover Proposal or inquiry made to the Stockholder with respect to or that would could reasonably be expected to lead to, an Alternative Transaction or an Alternative to any Takeover Proposal.
(ed) Such The Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to this the Merger Agreement, the Merger Agreement or any of other transaction contemplated by the transactions contemplated hereby or thereby, Merger Agreement without the prior written consent of Parent (which consent Parent, except as may be withheld in Parent’s sole discretion), except to the extent required by applicable Applicable Law.
(fe) Such The Stockholder hereby consents to and approves the actions taken by the Board of Directors of Target in approving the Merger Agreement and this Agreement, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights (including under Section 262 of the Delaware General Corporation Law) DGCL or other applicable law in connection with the Merger Agreement and the transactions contemplated therebyMerger.
(gf) Notwithstanding anything If, at the time the Merger Agreement is submitted for adoption by the stockholders of Target, the Stockholder is an "affiliate" of Target for purposes of Rule 145 under the Securities Act, the Stockholder shall deliver to Parent at least 30 days prior to the contrary Closing a written agreement substantially in this Agreement and in this Section 3 in particular, such Stockholder is only executing this Agreement in his capacity the form attached as Exhibit A to the Beneficial Owner, or owner of record, of the Subject SharesMerger Agreement.
Appears in 1 contract
Covenants of Each Stockholder. Each Subject to Section 5 hereof, each Stockholder covenants and agrees as follows:
(ia) The Stockholder hereby permits the Company, Parent and Sub to publish and disclose in the Proxy Materials (including all documents and schedules filed with the SEC) its identity and ownership of the Subject Shares and the nature of its commitments, arrangements and understandings under this Agreement.
(1) At every any meeting of the stockholders of Target the Company called to seek the Target approval of the Merger Agreement and the Merger (the "Company Stockholder Approval, at every adjournment ") or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement Agreement, any other Operative Agreement, the Merger or any of the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, other Transaction is sought, such the Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) shall vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, ) the Subject Shares in favor of granting the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Company Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revokedApproval.
(ii2) Such The Stockholder hereby irrevocably grants to, and appoints, Parent Parent, Robert P. Freeman and Murry N. Gunty, or any of them, and any individual designated in writing by Parent▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ated ▇▇ ▇▇▇▇▇▇▇ ▇▇ any of them, and each of them individually, as such the Stockholder’s 's proxy and attorney-in-fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such the Stockholder, to vote the Subject Shares, or grant a consent or approval in respect of the Subject Shares, Shares in a manner consistent with this Section 3. Such The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii3(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such the Stockholder under this Agreement. Such The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Such Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation Law. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares.
(b) At any meeting of the stockholders of Target or at any adjournment or postponement thereof or in any other circumstances upon which such Stockholder’s vote, consent or other approval is sought, such Stockholder shall vote (or cause to be voted) the Subject Shares against (and shall not provide consents in favor of) (i) any consolidation, combination, sale of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby), (ii) any Alternative Transaction or Target Alternative Proposal (including any Superior Proposal), and (iii) any amendment of the Target Charter or the Target By-Laws or other proposal or transaction involving Target or any of its Subsidiaries, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay or nullify any provision of the Merger Agreement or any of the transactions contemplated hereby or thereby, or change in any manner the voting rights of any class of capital stock of Target. Such Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b).
(c) Except as set forth in this Agreement, such Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in (collectively, “Transfer”), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Subject Shares to any Person, (ii) grant any proxies, options or right of first offer or right of first refusal with respect to the Subject Shares, (iii) enter into, or propose to enter into, any voting arrangement, whether by proxy, voting agreement, voting trust or otherwise, with respect to any Subject Shares, (iv) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreement.
(d) Such Stockholder shall not, and shall use its commercially reasonable best efforts to cause any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such Stockholder not to, directly or indirectly, (i) solicit, initiate, or take any action that it knows or reasonably should know would facilitate or encourage the submission of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiation with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore with respect to, or that would reasonably be expected to lead to, an Alternative Transaction or an Alternative Proposal.
(e) Such Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or any of the transactions contemplated hereby or thereby, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion), except to the extent required by applicable Law.
(f) Such Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights (including under the Delaware General Corporation Law) in connection with the Merger Agreement and the transactions contemplated thereby.
(g) Notwithstanding anything to the contrary in this Agreement and in this Section 3 in particular, such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Shares.as
Appears in 1 contract
Sources: Support Agreement (Lazard Freres Real Estate Investors LLC)
Covenants of Each Stockholder. Each Stockholder Stockholder, severally and not jointly, covenants and agrees as follows:
(i1) At every any meeting of the stockholders of Target the Company called to seek vote upon the Target Stockholder Approval, at every adjournment Merger and the Merger Agreement or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement Agreement, the Merger or any of other transaction contemplated by the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, Agreement is sought, such the Stockholder shall, (A) including by executing a written consent if a meeting is heldrequested by Parent, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, ) the Subject Shares of the Stockholder in favor of the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revokedMerger Agreement.
(ii2) Such IRREVOCABLE PROXY The Stockholder hereby irrevocably grants to, and appoints, Parent Parent, William S. Boyd and William R. Boyd, or any of them, and any individual designated in writing by Parentindividu▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇n wri▇▇▇▇ ▇▇ ▇▇▇ ▇▇ them, and each of them individually, as such the Stockholder’s 's proxy and attorney-in-fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such the Stockholder, to vote the Subject SharesShares of the Stockholder, or grant a consent or approval in respect of the Subject Shares, Shares of the Stockholder in a manner consistent with this Section 3. Such The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholders' execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii3(a) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such the Stockholder under this Agreement. Such The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Such The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereofin accordance herewith. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e78.355(5) of the Delaware General Corporation LawNevada Revised Statutes. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute Sections 3(a) and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii3(b); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares.
(b) At any meeting of the stockholders of Target the Company or at any adjournment or postponement thereof or in any other circumstances upon which such the Stockholder’s 's vote, consent or other approval (including by written consent) is sought, such the Stockholder shall vote (or cause to be voted) the Subject Shares against of the Stockholder against, and shall not consent to (and shall cause the Subject Shares of the Stockholder not provide consents in favor of) to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, mergerjoint venture, binding share exchange, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby)Company, (ii) any Alternative Transaction or Target Alternative Company Takeover Proposal (including any Superior Proposal), and as defined in Section 5.02(e) of the Merger Agreement) or (iii) any amendment of the Target Charter articles of incorporation or by-laws of the Target By-Laws Company or other proposal proposal, action or transaction involving Target the Company or any of its Subsidiariesstockholders, which amendment or other proposal proposal, action or transaction would reasonably be expected to in any manner impede, frustrate, preventinterfere with, delay delay, prevent or nullify any provision of the Merger Agreement, the Merger or any other transaction contemplated by the Merger Agreement or any the consummation of the transactions contemplated hereby or therebyby this Agreement, or change in any manner the voting rights of any class of capital stock of Targetthe Company (collectively, "Frustrating Transactions"). Such The Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b)foregoing.
(c) Except as set forth in this Agreement, such The Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) not (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in ) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, of any Subject Shares or any interest therein, to any Personperson (other than, if the transactions contemplated by the Merger Agreement are consummated, by operation of law in the Merger), (ii) grant any proxies, options or right of first offer or right of first refusal with respect other than pursuant to the Subject Sharesexpress terms of this Agreement, (iii) enter into, or propose to enter into, into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any Subject Shares, Shares or (iviii) take any action that would make which would, or could reasonably be expected to result in a diminution of the voting power represented by any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) Subject Shares, and shall not commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreementactions.
(d) Such The Stockholder shall not, and nor shall use its commercially reasonable best efforts to cause he authorize or permit any manageremployee of, officeror any investment banker, directorattorney or other adviser or representative of, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such the Stockholder not to, directly or indirectly, (i) solicit, initiateinitiate or encourage, or take any other action that it knows to facilitate, any inquiries with respect to a potential Company Takeover Proposal or reasonably should know would facilitate Frustrating Transaction or encourage the submission of, of any Acquisition ProposalCompany Takeover Proposal or Frustrating Transaction, (ii) enter into any agreement with respect to any Company Takeover Proposal or Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiation withnegotiations regarding, or furnish to any person any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, or knowingly assist, assist or participate in, facilitate or encourage in any effort or attempt by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore person with respect to, any Company Takeover Proposal or Frustrating Transaction. The Stockholder promptly shall advise Parent orally and in writing of any Company Takeover Proposal or Frustrating Transaction or inquiry made to the Stockholder with respect to or that would reasonably be expected to lead toto a Company Takeover Proposal or Frustrating Transaction, an Alternative the identity of the person making or initiating any such Company Takeover Proposal, Frustrating Transaction or an Alternative inquiry and the material terms of any such Company Takeover Proposal, Frustrating Transaction or inquiry. The Stockholder shall keep Parent informed of the status and details (including amendments or proposed amendments) of any such Company Takeover Proposal, Frustrating Transaction or inquiry.
(e) Such The Stockholder shall not not, nor shall the Stockholder authorize or permit any investment banker, attorney or other adviser or representative of, the Stockholder to, issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any other transactions contemplated by this Agreement or any of the transactions contemplated hereby or thereby, Merger Agreement without the prior written consent of Parent (which consent Parent, except as may be withheld in Parent’s sole discretion), except to the extent required by applicable Lawlaw.
(f) Such The Stockholder shall use his reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most reasonably expeditious manner practicable, the transactions contemplated by this Agreement.
(g) The Stockholder hereby waiveswaives any rights to dissent from the Merger that the Stockholder may have, and agrees not to exercise commence or assertparticipate in, and to take all actions necessary to opt out of any class in any class action with respect to, any appraisal claim, derivative or similar rights otherwise, against the Company (including under or any of its respective successors) relating to the Delaware General Corporation Law) in connection with negotiation, execution and delivery of this Agreement or the Merger Agreement and or the consummation of the Merger or any of the other transactions contemplated therebyin this Agreement or the Merger Agreement.
(gh) Notwithstanding anything to As soon as practicable after the contrary in date of this Agreement and in this any event prior to the Effective Time (as defined in Section 3 in particular1.03 of the Merger Agreement), each of Michael J. Gaughan and Franklin Toti shall enter into a stockholders ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇ually satisfactory to Parent and each such Stockholder, regarding certain restrictions on the transfer by each such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Sharesshares of Parent Common Stock received by such Stockholder in the Merger.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder covenants and agrees as follows:
(i) At every meeting of the stockholders of Target called to seek the Target Stockholder Approval, at every adjournment or postponement thereof, and in each other circumstance upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement or any of the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, is sought, such Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, the Subject Shares in favor of the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revoked.
(ii) Such Stockholder hereby irrevocably grants to, and appoints, Parent and any individual designated in writing by Parent, and each of them individually, as such Stockholder’s proxy and attorney-in-fact (with full power of substitution and resubstitution), for and in the name, place and stead of such Stockholder, to vote the Subject Shares, or grant a consent or approval in respect of the Subject Shares, in a manner consistent with this Section 3. Such Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Stockholder under this Agreement. Such Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Such Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation Law. The irrevocable proxy granted hereunder shall automatically terminate upon Until the termination of this Agreement. Upon delivery of written request to do so by ParentAgreement in accordance with Section 5, such Stockholder shall as promptly as practicable execute and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such each Stockholder, and (ii) terminate upon in its capacity as such, agrees as follows: At the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares.
(b) At any meeting of the stockholders of Target Special Meeting or at any adjournment adjournment, postponement or postponement continuation thereof or in any other circumstances occurring prior to the Special Meeting upon which such Stockholder’s vote, consent a vote or other approval with respect to the Merger and the Merger Agreement is soughtsought by the Company from the Company's stockholders, such each Stockholder shall vote (or cause to be voted) the Subject Shares against (and shall not provide consents in favor of) held by such Stockholder (i) any consolidation, combination, sale in favor of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up the approval of or by Target (other than the Merger Agreement and the transactions contemplated thereby), approval and adoption of the Merger Agreement; and (ii) except with the written consent of Parent, against any Alternative Transaction Proposal. Any such vote shall be cast in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the results of such vote. Each Stockholder agrees not to enter into any agreement or Target Alternative Proposal (including commitment with any Superior Proposal), and (iii) any amendment Person the effect of which would be inconsistent with or violative of the Target Charter or the Target By-Laws or other proposal or transaction involving Target or any of its Subsidiaries, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay or nullify any provision of the Merger Agreement or any of the transactions contemplated hereby or thereby, or change in any manner the voting rights of any class of capital stock of Target. Such Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements provisions and agreements contained in this Section 3(b3(a).
(c) Except as set forth in . Each Stockholder hereby appoints Parent and any designee of Parent, and each of them individually, its proxies and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement, such Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in (collectively, “Transfer”), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Subject Shares to any Person, (ii) grant any proxies, options or right of first offer or right of first refusal Agreement with respect to the Subject SharesShares in accordance with Section 3(a). This proxy is given to secure the performance of the duties of each Stockholder under this Agreement. Each Stockholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy and power of attorney. The proxy and power of attorney granted hereunder by each Stockholder shall be irrevocable during the term of this Agreement, (iii) enter into, or propose shall be deemed to enter into, be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any voting arrangement, whether and all prior proxies granted by proxy, voting agreement, voting trust or otherwise, each Stockholder with respect to any Subject Shares, (iv) take any action that would make any representation or warranty the matters contemplated by Section 3(a). The power of such attorney granted by each Stockholder herein untrue is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case incapacity of such Stockholder’s death, by will or by the laws . The proxies and powers of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees attorney granted hereunder shall cease to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder irrevocable and shall continue to be liable for any breach by such transferee terminate upon the termination of its agreements and covenants under this Agreement.
(d) Such . Each Stockholder shall not, and shall use its commercially reasonable best efforts to cause any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such Stockholder agrees not to, directly or indirectly, (i) solicitsell, initiatetransfer, tender, pledge, encumber, assign or otherwise dispose of (collectively, a "Transfer") or enter into any agreement, option or other arrangement with respect to, or consent to a Transfer of, or convert or agree to convert, any or all of the Subject Shares to any Person, other than in accordance with the Merger Agreement, except in each case for Transfers (x) to any other Stockholder or (y) to any Person who executes and delivers to Parent and Merger Sub a voting agreement identical in form to this Agreement (except for the identity of the Stockholder) prior to or concurrently with the consummation of such Transfer or (ii) grant any proxies (other than the Company proxy card in connection with the Special Meeting if and to the extent such proxy is consistent with the Stockholder's obligations under Section 3(a) hereof), deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, in any case where such action would be inconsistent with or violative of the provisions and agreements contained in Section 3(a) hereof. Such Stockholder further agrees (A) not to commit or agree to take any of the actions that are prohibited by clause (i) or (ii) of the preceding sentence and (B) not to take any action that it knows would have the effect of preventing, impeding, interfering with or reasonably should know would facilitate or encourage the submission ofadversely affecting its ability to perform its obligations under this Agreement. Such Stockholder shall not, nor shall such Stockholder permit any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiation with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder to, nor shall be deemed such Stockholder act in concert with or permit any controlled affiliate to be act in concert with any Person to make, or in any manner participate in, directly or indirectly, a breach "solicitation" (as such term is used in the rules of this Section 3(dthe Securities and Exchange Commission) by such Stockholderof proxies or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any shares of Common Stock intended to facilitate any Alternative Proposal or to cause stockholders of the Company not to vote to approve and adopt the Merger Agreement. Each Such Stockholder shallshall not, and shall use its commercially reasonable best efforts to cause its managersdirect any investment banker, officersattorney, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, agent or other agents, and controlled affiliates, as applicable, adviser or representative of such Stockholder not to, cease immediately and cause to be terminated initiate or solicit (including by way of furnishing non-public information) or knowingly take any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore with respect toaction that constitutes, or that would is reasonably be expected to lead to, an Alternative Transaction Proposal or engage in any substantive discussions or negotiations concerning, or provide any non-public information with respect to, an Alternative Proposal.
(e) Such . Each Stockholder shall hereby represents that, as of the date hereof, it is not issue engaged in substantive discussions or negotiations with any press release or make any other public statement party with respect to this Agreement, the Merger Agreement or any of the transactions contemplated hereby or thereby, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion), except to the extent required by applicable Law.
(f) Such Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights (including under the Delaware General Corporation Law) in connection with the Merger Agreement and the transactions contemplated thereby.
(g) Alternative Proposal. Notwithstanding anything to the contrary in this Agreement Section 3, if and in this Section 3 in particularto the extent that, such Stockholder is only executing this Agreement in his capacity as pursuant to the Beneficial Owner, or owner of record, terms of the Subject SharesMerger Agreement, the Company is permitted to provide information to and engage in substantive discussions and negotiations with any Person regarding an Alternative Proposal, then the Stockholders may provide information to and engage in substantive discussions and negotiations with such Person and its representatives.
Appears in 1 contract
Sources: Voting Agreement (Burlington Coat Factory Warehouse Corp)
Covenants of Each Stockholder. Each Stockholder Stockholder, severally and not jointly, covenants and agrees as follows:
(i1) At every any meeting of the stockholders of Target the Company called to seek vote upon the Target Stockholder Approval, at every adjournment Merger and the Merger Agreement or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement Agreement, the Merger or any of other transaction contemplated by the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, Agreement is sought, such the Stockholder shall, (A) including by executing a written consent if a meeting is heldrequested by Parent, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, ) the Subject Shares of the Stockholder in favor of the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revokedMerger Agreement.
(ii2) Such IRREVOCABLE PROXY The Stockholder hereby irrevocably grants to, and appoints, Parent Parent, William S. Boyd and William R. Boyd, or any of them, and any individual designated indiv▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇d in writing by Parent▇▇▇▇▇▇▇ ▇▇ ▇▇▇ of them, and each of them individually, as such the Stockholder’s 's proxy and attorney-in-fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such the Stockholder, to vote the Subject SharesShares of the Stockholder, or grant a consent or approval in respect of the Subject Shares, Shares of the Stockholder in a manner consistent with this Section 3. Such The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholders' execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii3(a) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such the Stockholder under this Agreement. Such The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Such The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereofin accordance herewith. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e78.355(5) of the Delaware General Corporation LawNevada Revised Statutes. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute Sections 3(a) and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii3(b); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares.
(b) At any meeting of the stockholders of Target the Company or at any adjournment or postponement thereof or in any other circumstances upon which such the Stockholder’s 's vote, consent or other approval (including by written consent) is sought, such the Stockholder shall vote (or cause to be voted) the Subject Shares against of the Stockholder against, and shall not consent to (and shall cause the Subject Shares of the Stockholder not provide consents in favor of) to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, mergerjoint venture, binding share exchange, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby)Company, (ii) any Alternative Transaction or Target Alternative Company Takeover Proposal (including any Superior Proposal), and as defined in Section 5.02(e) of the Merger Agreement) or (iii) any amendment of the Target Charter articles of incorporation or by-laws of the Target By-Laws Company or other proposal proposal, action or transaction involving Target the Company or any of its Subsidiariesstockholders, which amendment or other proposal proposal, action or transaction would reasonably be expected to in any manner impede, frustrate, preventinterfere with, delay delay, prevent or nullify any provision of the Merger Agreement, the Merger or any other transaction contemplated by the Merger Agreement or any the consummation of the transactions contemplated hereby or therebyby this Agreement, or change in any manner the voting rights of any class of capital stock of Targetthe Company (collectively, "Frustrating Transactions"). Such The Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b)foregoing.
(c) Except as set forth in this Agreement, such The Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) not (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in ) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, of any Subject Shares or any interest therein, to any Personperson (other than, if the transactions contemplated by the Merger Agreement are consummated, by operation of law in the Merger), (ii) grant any proxies, options or right of first offer or right of first refusal with respect other than pursuant to the Subject Sharesexpress terms of this Agreement, (iii) enter into, or propose to enter into, into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any Subject Shares, Shares or (iviii) take any action that would make which would, or could reasonably be expected to result in a diminution of the voting power represented by any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) Subject Shares, and shall not commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreementactions.
(d) Such The Stockholder shall not, and nor shall use its commercially reasonable best efforts to cause he authorize or permit any manageremployee of, officeror any investment banker, directorattorney or other adviser or representative of, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such the Stockholder not to, directly or indirectly, (i) solicit, initiateinitiate or encourage, or take any other action that it knows to facilitate, any inquiries with respect to a potential Company Takeover Proposal or reasonably should know would facilitate Frustrating Transaction or encourage the submission of, of any Acquisition ProposalCompany Takeover Proposal or Frustrating Transaction, (ii) enter into any agreement with respect to any Company Takeover Proposal or Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiation withnegotiations regarding, or furnish to any person any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, or knowingly assist, assist or participate in, facilitate or encourage in any effort or attempt by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore person with respect to, any Company Takeover Proposal or Frustrating Transaction. The Stockholder promptly shall advise Parent orally and in writing of any Company Takeover Proposal or Frustrating Transaction or inquiry made to the Stockholder with respect to or that would reasonably be expected to lead toto a Company Takeover Proposal or Frustrating Transaction, an Alternative the identity of the person making or initiating any such Company Takeover Proposal, Frustrating Transaction or an Alternative inquiry and the material terms of any such Company Takeover Proposal, Frustrating Transaction or inquiry. The Stockholder shall keep Parent informed of the status and details (including amendments or proposed amendments) of any such Company Takeover Proposal, Frustrating Transaction or inquiry.
(e) Such The Stockholder shall not not, nor shall the Stockholder authorize or permit any investment banker, attorney or other adviser or representative of, the Stockholder to, issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any other transactions contemplated by this Agreement or any of the transactions contemplated hereby or thereby, Merger Agreement without the prior written consent of Parent (which consent Parent, except as may be withheld in Parent’s sole discretion), except to the extent required by applicable Lawlaw.
(f) Such The Stockholder shall use his reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most reasonably expeditious manner practicable, the transactions contemplated by this Agreement.
(g) The Stockholder hereby waiveswaives any rights to dissent from the Merger that the Stockholder may have, and agrees not to exercise commence or assertparticipate in, and to take all actions necessary to opt out of any class in any class action with respect to, any appraisal claim, derivative or similar rights otherwise, against the Company (including under or any of its respective successors) relating to the Delaware General Corporation Law) in connection with negotiation, execution and delivery of this Agreement or the Merger Agreement and or the consummation of the Merger or any of the other transactions contemplated therebyin this Agreement or the Merger Agreement.
(gh) Notwithstanding anything to As soon as practicable after the contrary in date of this Agreement and in this any event prior to the Effective Time (as defined in Section 3 in particular1.03 of the Merger Agreement), each of Michael J. Gaughan and Franklin Toti shall enter into a stockholde▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇orm a▇▇ ▇▇▇▇▇▇▇▇▇ mutually satisfactory to Parent and each such Stockholder, regarding certain restrictions on the transfer by each such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Sharesshares of Parent Common Stock received by such Stockholder in the Merger.
Appears in 1 contract
Covenants of Each Stockholder. Each Subject to Section 5 ------------------------------ hereof, each Stockholder covenants and agrees as follows:
(ia) The Stockholder hereby permits the Company, Parent and Sub to publish and disclose in the Proxy Materials (including all documents and schedules filed with the SEC) its identity and ownership of the Subject Shares and the nature of its commitments, arrangements and understandings under this Agreement.
(1) At every any meeting of the stockholders of Target the Company called to seek the Target approval of the Merger Agreement and the Merger (the "Company Stockholder Approval, at every adjournment ") or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement Agreement, any other Operative Agreement, the Merger or any of the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, other Transaction is sought, such the Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) shall vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, ) the Subject Shares in favor of granting the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Company Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revokedApproval.
(ii2) Such The Stockholder hereby irrevocably grants to, and appoints, Parent Parent, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, or any of them, and any individual designated in writing by Parentany of them, and each of them individually, as such the Stockholder’s 's proxy and attorney-in-fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such the Stockholder, to vote the Subject Shares, or grant a consent or approval in respect of the Subject Shares, Shares in a manner consistent with this Section 3. Such The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii3(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such the Stockholder under this Agreement. Such The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked, except as provided herein. Such The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation LawDGCL. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute Sections 3(b) and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii3(c); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares.
(bc) At any meeting of the stockholders of Target the Company or at any adjournment or postponement thereof or in any other circumstances upon which such the Stockholder’s 's vote, consent or other approval is sought, such the Stockholder shall vote (or cause to be voted) the Subject Shares against (and shall not provide consents in favor of) (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby)Company, (ii) any Alternative Transaction or Target Alternative Proposal "takeover proposal" (including any Superior Proposal), as defined in the Merger Agreement) and (iii) any amendment of the Target Charter certificate of incorporation or by-laws of the Target By-Laws Company or other proposal or transaction involving Target the Company or any of its Subsidiariessubsidiaries, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay prevent or nullify any provision of any Operative Agreement, the Merger Agreement or any of the transactions contemplated hereby or thereby, other Transaction or change in any manner the voting rights of any class of capital stock of Targetthe Company. Such The Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b)foregoing.
(cd) Except as set forth in Other than this Agreement, such the Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) not (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in ) (collectively, “"Transfer”"), or enter into any Contractagreement, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Subject Shares to any Person, person other than pursuant to the Merger or (ii) grant any proxies, options or right of first offer or right of first refusal with respect to the Subject Shares, (iii) enter into, or propose to enter into, into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any Subject Shares, (iv) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) Shares and shall not commit or agree to take any of the foregoing actions in clauses actions. Notwithstanding the foregoing, the Stockholder may Transfer the Subject Shares to the Vencor Operating Company (i), (ii), (iiias defined below) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case one of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder its wholly owned subsidiaries in connection with estate planning purposes so long the transactions described in the Vencor Proxy Statement (as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its termsdefined below); provided, however, that notwithstanding the Vencor Operating Company (or such Transfer or arrangementsubsidiary, such Stockholder if -------- ------- applicable) shall continue execute and deliver to Parent a supplement to this Agreement agreeing to be liable for any breach bound by such transferee of its agreements and covenants under this Agreement.
(d) Such Stockholder shall not, and shall use its commercially reasonable best efforts the terms hereof. "Vencor Operating Company" means the corporation referred to cause any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such Stockholder not to, directly or indirectly, (i) solicit, initiate, or take any action that it knows or reasonably should know would facilitate or encourage as the submission of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiation with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth "Operating Company" in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate Vencor Proxy Statement. The "Vencor Proxy Statement" means definitive proxy statement included in the Schedule 14A of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliatesVencor, as applicableamended, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore with respect to, or that would reasonably be expected to lead to, an Alternative Transaction or an Alternative Proposal.
(e) Such Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or any of the transactions contemplated hereby or thereby, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion), except to the extent required by applicable Law.
(f) Such Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights (including under the Delaware General Corporation Law) in connection filed with the Merger Agreement Securities and the transactions contemplated therebyExchange Commission on March 26, 1998.
(g) Notwithstanding anything to the contrary in this Agreement and in this Section 3 in particular, such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Shares.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder Stockholder, severally and not jointly, covenants and agrees as follows:
(i1) At every any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of Target the Company called to seek the Target Company Stockholder Approval, at every adjournment Approval or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement Agreement, any other Transaction Agreement, the Merger or any of the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, other Transaction is sought, such the Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Company Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revokedApproval.
(ii2) Such The Stockholder hereby irrevocably grants to, and appoints, Parent Parent, Donald A. McKay, and any individual Charles R. ▇▇▇▇▇▇, ▇▇ ▇▇▇ of th▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇idual designated in writing by Parentany of them, and each of them individually, as such the Stockholder’s 's proxy and attorney-in-fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such the Stockholder, to vote the Subject SharesShares of the Stockholder, or grant a consent or approval in respect of the Subject Shares, Shares of the Stockholder in a manner consistent with this Section 3. Such The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii3(a) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such the Stockholder under this Agreement. Such The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Such The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation LawDGCL. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute Sections 3(a) and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth 3(b) in this accordance with Section 3(a)(ii); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares5.
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the stockholders of Target Company or at any adjournment or postponement thereof or in any other circumstances upon which such the Stockholder’s 's vote, consent or other approval is sought, such the Stockholder shall vote (or cause to be voted) the Subject Shares of the Stockholder against (and shall not provide consents in favor of) (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby)Company, (ii) any Alternative Transaction or Target Alternative Acquisition Proposal (including any Superior Proposal), and (iii) any amendment of the Target Company Charter or the Target Company By-Laws laws or other proposal or transaction involving Target the Company or any of its SubsidiariesCompany Subsidiary, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay prevent or nullify any provision of the Merger Agreement or any of other Transaction Agreement, the transactions contemplated hereby Merger or thereby, any other Transaction or change in any manner the voting rights of any class of capital stock of Targetthe Company. Such The Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b)foregoing.
(c) Except Other than this Agreement and except as set forth provided in this Agreementthe next sentence, such the Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) not (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in ) (collectively, “"Transfer”"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Subject Shares to any Person, person other than pursuant to the Merger or (ii) grant any proxies, options or right of first offer or right of first refusal with respect to the Subject Shares, (iii) enter into, or propose to enter into, into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any Subject Shares, (iv) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) Shares and shall not commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv)actions. Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreement.
(d) Such Stockholder shall not, and shall use its commercially reasonable best efforts to cause any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such Stockholder not to, directly or indirectly, (i) solicit, initiate, or take any action that it knows or reasonably should know would facilitate or encourage the submission of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiation with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore with respect to, or that would reasonably be expected to lead to, an Alternative Transaction or an Alternative Proposal.
(e) Such Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or any of the transactions contemplated hereby or thereby, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion), except to the extent required by applicable Law.
(f) Such Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights (including under the Delaware General Corporation Law) in connection with the Merger Agreement and the transactions contemplated thereby.
(g) Notwithstanding anything to the contrary in this Agreement and in this Section 3 in particular, such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Shares.following Transfers are expressly permitted:
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder Subject to Section 5 ----------------------------- hereof, each Stockholder, severally and not jointly, covenants and agrees as follows:
(ia) The Stockholder hereby permits the Company, Parent and Sub to publish and disclose in the Proxy Materials (including all documents and schedules filed with the SEC) its identity and ownership of the Subject Shares and the nature of its commitments, arrangements and understandings under this Agreement.
(1) At every any meeting of the stockholders of Target the Company called to seek the Target approval of the Merger Agreement and the Merger (the "Company Stockholder Approval, at every adjournment ") or postponement thereof, and in each any other circumstance circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement Agreement, any other Operative Agreement, the Merger or any of the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, other Transaction is sought, such the Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) shall vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, ) the Subject Shares of the Stockholder in favor of granting the Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Company Stockholder represents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revokedApproval.
(ii2) Such The Stockholder hereby irrevocably grants to, and appoints, Parent ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, or any of them, and any individual designated in writing by Parentany of them, and each of them individually, as such the Stockholder’s 's proxy and attorney-in-fact (with full power of substitution and resubstitutionsubstitution), for and in the name, place and stead of such the Stockholder, to vote the Subject SharesShares of the Stockholder, or grant a consent or approval in respect of the Subject Shares, Shares of the Stockholder in a manner consistent with this Section 3. Such The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(ii3(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such the Stockholder under this Agreement. Such The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked, except as provided herein. Such The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the Delaware General Corporation LawDGCL. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute Sections 3(b) and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii3(c); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and (ii) terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 3(a)(i) with respect to such Stockholder’s Subject Shares.
(bc) At any meeting of the stockholders of Target the Company or at any adjournment or postponement thereof or in any other circumstances upon which such the Stockholder’s 's vote, consent or other approval is sought, such the Stockholder shall vote (or cause to be voted) the Subject Shares against (and shall not provide consents in favor of) (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the Merger Agreement and the transactions contemplated thereby)Company, (ii) any Alternative Transaction or Target Alternative Proposal takeover proposal (including any Superior Proposal), as defined in the Merger Agreement) and (iii) any amendment of the Target Charter certificate of incorporation or by-laws of the Target By-Laws Company or other proposal or transaction involving Target the Company or any of its Subsidiariessubsidiaries, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent, delay prevent or nullify any provision of any Operative Agreement, the Merger Agreement or any of the transactions contemplated hereby or thereby, other Transaction or change in any manner the voting rights of any class of capital stock of Targetthe Company. Such The Stockholder shall not commit or agree to take any action inconsistent with the foregoing requirements in this Section 3(b)foregoing.
(cd) Except as set forth in Other than this Agreement, such the Stockholder shall not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) not (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift), hedge or utilize a derivative to transfer the economic interest in ) (collectively, “"Transfer”"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Subject Shares to any Person, person other than pursuant to the Merger or (ii) grant any proxies, options or right of first offer or right of first refusal with respect to the Subject Shares, (iii) enter into, or propose to enter into, into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any Subject Shares, (iv) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) Shares and shall not commit or agree to take any of the foregoing actions in clauses (i), (ii), (iii) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreementactions.
(de) Such The Stockholder shall not, and nor shall use its commercially reasonable best efforts to cause it authorize or permit any manageremployee of, officeror any investment banker, directorattorney or other adviser or representative of, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such the Stockholder not to, directly or indirectly, (i) directly or indirectly solicit, initiate, or take any action that it knows or reasonably should know would facilitate initiate or encourage the submission of, any Acquisition Proposaltakeover proposal, (ii) enter into any agreement with respect to any takeover proposal or (iii) directly or indirectly participate in any discussions or negotiation withnegotiations regarding, or furnish to any person any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore with respect to, or take any other action to facilitate any inquiries or the making of any proposal that would constitutes, or may reasonably be expected to lead to, an Alternative Transaction any takeover proposal. The Stockholder promptly shall advise Parent orally and in writing of any takeover proposal or an Alternative Proposal.
(e) Such inquiry made to the Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, or that could reasonably be expected to lead to any takeover proposal and the Merger Agreement material terms of any such takeover proposal or any of the transactions contemplated hereby or thereby, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion), except to the extent required by applicable Lawinquiry.
(f) Such The Stockholder shall use its reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other Transactions.
(g) The Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement, the Merger and the other Transactions. The Stockholder hereby waives, and agrees not to exercise or assertassent, any appraisal or similar rights (including under the Delaware General Corporation Law) Section 262 in connection with the Merger Agreement and the transactions contemplated therebyMerger.
(g) Notwithstanding anything to the contrary in this Agreement and in this Section 3 in particular, such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Shares.
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