Voting Agreement and Proxy. (a) From and after the date hereof and until the provisions of this paragraph 1 cease to be effective, each Shareholder shall vote all of his or its Shareholder Shares which are voting shares and any other voting securities of the Company over which such Shareholder has voting control and shall take all other necessary or desirable actions within such holder’s control (whether in such holder’s capacity as a shareholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), and the Company shall take all necessary or desirable actions within its control (including, without limitation, calling special board and shareholder meetings), so that: (i) the authorized number of directors on the Board shall be seven (7); (ii) four directors shall be designated by Apollo, which representatives shall, as of the date of this Agreement, be G▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, B▇▇▇▇ ▇▇▇▇▇▇▇, R▇▇ ▇▇▇▇▇▇▇▇▇ and P▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Apollo Directors”); (iii) two directors shall be designated by Carlyle, which representatives shall, as of the date of this Agreement, be B▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and C▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the “Carlyle Directors”), provided however that on any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more), one director shall be designated by Carlyle; (iv) the President of the Company shall be a director; (v) the removal from the Board without cause of any of the Apollo Directors under paragraph l(a)(ii) above shall be at Apollo’s written request, and only upon such written request and under no other circumstances; and (vi) the removal from the Board without cause of any of the Carlyle Directors under paragraph l(a)(iii) above shall be at Carlyle’s written request, and only upon such written request and under no other circumstances. Carlyle agrees to remove one of the Carlyle Directors promptly after any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more). (b) In the event that any representative designated hereunder by any party ceases to serve as a member of the Board during his term of office for any reason, the resulting vacancy on the Board will be filled by a representative selected by the party entitled to designate such representative pursuant to paragraph l(a). The parties agree that any director may be removed from the Board for cause by resolution adopted by a majority of the remaining directors. (c) Each of Apollo and Carlyle, for so long as it remains a Shareholder hereunder, shall have the right to designate and remove two representatives (each such representative, a “Board Observer”) who shall (1) have the right to receive due notice of and to attend and participate in discussions at (but not vote on any matters on which the directors are entitled to vote) all meetings of the Board and all meetings of committees of the Board, (2) have the right to receive copies of all documents and other information, including minutes, consents,business plans, presentation materials, budgets and financial information furnished generally to members of the Board and committees thereof, and (3) be entitled to be indemnified by the Company pursuant to the Certificate of Incorporation of the Company to the same extent mutatis mutandis as if he or she were a member of the Board (and the Company hereby agrees to so indemnify each Board Observer). Notwithstanding the preceding sentence, on any date that Carlyle and its Affiliates do not own, in the aggregate, either (i) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars (or more), Carlyle shall have the right to designate and remove one Board Observer. (d) The Company will pay or promptly reimburse the actual reasonable out-of-pocket expenses incurred by each member of the Board and each Board Observer in connection with attending meetings of the Board or any committee of the Board. (e) In order to secure the obligations of each Other Shareholder who now or hereafter holds any voting securities to vote such Person’s Shareholder Shares in accordance with the provisions of this paragraph 1, each Other Shareholder hereby appoints Apollo as his or its true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of his or its Shareholder Shares for the election and/or removal of directors and all such other matters as expressly provided for in paragraph 1. Apollo may exercise the irrevocable proxy granted to it hereunder by any Other Shareholder at any time if any such Other Shareholder fails to comply with the provisions of this Agreement. The proxies and powers granted by each such Other Shareholder pursuant to this paragraph l(e) are coupled with an interest and are given to secure the performance of such Other Shareholder’s obligations under this Agreement. Such proxies and powers shall be irrevocable until termination of this paragraph 1 and shall survive the death, incompetency, disability, bankruptcy or dissolution of each such Shareholder and the subsequent holders of his or its Shareholder Shares. No Shareholder shall grant any proxy or become party to any voting trust or other agreement which is inconsistent with, conflicts with or violates any provision of this Agreement. (f) The provisions of this paragraph 1 shall terminate automatically and be of no further force and effect upon the earlier to occur of (i) the consummation of an Approved Sale and (ii) a Public Offering.
Appears in 1 contract
Voting Agreement and Proxy. (a) From and after the date hereof Effective Date and until the provisions of this paragraph 1 cease to be effective, each Shareholder shall vote all of his or its Shareholder Shares which are voting shares and any other voting securities of the Company over which such Shareholder has voting control and shall take all other necessary or desirable actions within such holder’s control (whether in such holder’s capacity as a shareholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), and the Company shall take all necessary or desirable actions within its control (including, without limitation, calling special board and shareholder meetings), so that:
(i) the authorized number of directors on the Board shall be seven (7)a number established by the ▇▇▇▇ Group Shareholders from time to time, but shall in no event be less than three members;
(ii) four directors all members of the Board shall be representatives designated by Apollo, which representatives shall, as of the date of this Agreement, be G▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇Group Shareholders, Bdetermined by a vote of the ▇▇▇▇ ▇▇▇▇▇▇▇, R▇▇ ▇▇▇▇▇▇▇▇▇ and P▇▇▇▇ ▇▇▇▇▇▇▇▇ (Group Shareholders owning a majority of the “Apollo Directors”)Bain Shares;
(iii) two directors shall be designated by Carlyle, which representatives shall, as of the date of this Agreement, be B▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and C▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the “Carlyle Directors”), provided however that on any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more), one director shall be designated by Carlyle;
(iv) the President of the Company shall be a director;
(v) the removal from the Board (with or without cause cause) of any of representative designated hereunder by the Apollo Directors under paragraph l(a)(ii) above ▇▇▇▇ Group Shareholders shall be at Apollo’s the ▇▇▇▇ Group Shareholders’ written request, and respectively, but only upon such written request and under no other circumstancescircumstances (in each case, determined on the basis of a vote of the holders of the majority of the Shareholder Shares held by such Persons); and
(viiv) the removal from the Board without cause of any of the Carlyle Directors under paragraph l(a)(iii) above shall be at Carlyle’s written request, and only upon such written request and under no other circumstances. Carlyle agrees to remove one of the Carlyle Directors promptly after any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more).
(b) In the event that any representative designated hereunder by any party the ▇▇▇▇ Group Shareholders ceases to serve as a member of the Board during his term of office for any reasonoffice, the resulting vacancy on the Board will shall be filled by a representative selected designated by the party entitled to designate such representative pursuant to paragraph l(a). The parties agree that any director may be removed from the Board for cause by resolution adopted by a majority of the remaining directors▇▇▇▇ Group Shareholders, respectively, as provided hereunder.
(c) Each of Apollo and Carlyle, for so long as it remains a Shareholder hereunder, shall have the right to designate and remove two representatives (each such representative, a “Board Observer”) who shall (1) have the right to receive due notice of and to attend and participate in discussions at (but not vote on any matters on which the directors are entitled to vote) all meetings of the Board and all meetings of committees of the Board, (2) have the right to receive copies of all documents and other information, including minutes, consents,business plans, presentation materials, budgets and financial information furnished generally to members of the Board and committees thereof, and (3) be entitled to be indemnified by the Company pursuant to the Certificate of Incorporation of the Company to the same extent mutatis mutandis as if he or she were a member of the Board (and the Company hereby agrees to so indemnify each Board Observer). Notwithstanding the preceding sentence, on any date that Carlyle and its Affiliates do not own, in the aggregate, either (i) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars (or more), Carlyle shall have the right to designate and remove one Board Observer.
(db) The Company will shall pay or promptly reimburse the actual reasonable out-of-pocket expenses incurred by each member of the Board and each Board Observer director in connection with attending meetings of the Board or any committee of the Board.
(ec) In order to secure the obligations Each holder of each Other Shareholder who now or hereafter holds any voting securities to vote such Person’s Shareholder Shares in accordance with the provisions of this paragraph 1, each Other Shareholder hereby appoints Apollo ▇▇▇▇ Capital, LLC (as his or its defined below) as their true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of his the capital stock of the Company owned by them (whether now owned or its Shareholder Shares for hereafter acquired) with respect to any matter upon which a vote of the election and/or removal shareholders of directors and all such other matters the Company may be made pursuant to the Michigan Business Corporation Act, as expressly provided for may be in paragraph 1. Apollo may exercise the irrevocable proxy granted effect from time to it hereunder by any Other Shareholder at any time if any such Other Shareholder fails to comply with the provisions of this Agreementtime. The proxies proxy and powers power of attorney granted by each such Other Shareholder pursuant to this paragraph l(e) are coupled with an interest and are given to secure the performance of such Other Shareholder’s obligations under this Agreement. Such proxies and powers herein shall be irrevocable until termination of this paragraph 1 deemed irrevocable, and shall survive the death, disability, incompetency, disabilitybankruptcy, bankruptcy insolvency or dissolution of each any holder of Shareholder Shares and the Transfer of all or any portion of the such Shareholder Shares and shall extend to the subsequent holders heirs, successors, assigns and personal representatives of his or its such holder of Shareholder Shares. No Each holder of Shareholder shall grant any proxy or become party Shares will, from time to any voting trust time as requested by the Bain Holders, execute and deliver such further instruments, ancillary agreements or other agreement which is inconsistent withdocuments or take such other actions as may be necessary or advisable to give effect to, conflicts with confirm, evidence or violates any effectuate the purposes of the proxy granted by this Section 1(c) and each other provision of this Agreement.
(f. The proxy granted by this Section 1(c) The provisions of this paragraph 1 shall terminate automatically cease and be of no further force and effect with respect to any share of Shareholder Shares upon the earlier Transfer of such share of Shareholder Shares pursuant to occur of (i) the consummation provisions of an Approved Sale and Section 2(b) of this Agreement or (ii) a Public OfferingSale.
Appears in 1 contract
Voting Agreement and Proxy. (a) From and after the date hereof Effective Date and until the provisions of this paragraph Section 1 cease to be he effective, each Shareholder Stockholder shall vote all of his or its Shareholder Stockholder Shares which are voting shares and any other voting securities of the Company over which such Shareholder Stockholder has voting control and shall take all other necessary or desirable actions within such holder’s control (whether in such holder’s capacity as a shareholderstockholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), and the Company shall take all necessary or desirable actions within its control (including, without limitation, calling special board and shareholder stockholder meetings), so that:
(i) the authorized number of directors on the Board shall be seven a number established by the Spectrum Group Stockholders from time to time, which shall initially be four (7)4) members and shall in no event be less than four (4) members;
(ii) four directors the following persons shall be elected to the Board:
(A) two (2) representatives shall be designated by Apollo, which representatives shall, as the Spectrum Group Stockholders (determined on the basis of a vote of the date of this Agreement, be G▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, B▇▇▇▇ ▇▇▇▇▇▇▇, R▇▇ ▇▇▇▇▇▇▇▇▇ and P▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Apollo Directors”);
(iii) two directors shall be designated by Carlyle, which representatives shall, as holders of the date majority of this Agreementthe Stockholder Shares held by the Spectrum Group Stockholders), who shall initially be B▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and C▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the “Carlyle Directors”), provided however that on any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more), one director shall be designated by Carlyle▇;
(ivB) the President Chief Executive Officer of the Company Company; provided, that the person serving pursuant to this clause (B) may be removed from the Board in connection with the cessation of such person’s employment with the Company; and
(C) one representative shall be an independent director nominated by the Spectrum Group Stockholders and reasonably acceptable to the Other Stockholders (determined on the basis of a director;vote of the holders of the majority of the Stockholder Shares held by the Other Stockholders), which shall initially be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇; and
(viii) the removal from the Board (with or without cause cause) of any of the Apollo Directors under paragraph l(a)(ii) above representative designated hereunder by any party shall be at Apollosuch party’s written request, and but only upon such written request and under no other circumstances; and
circumstances (vi) in each case, determined by the removal from the Board without cause of party entitled to designate any of the Carlyle Directors under paragraph l(a)(iii) above shall be at Carlyle’s written request, and only upon such written request and under no other circumstances. Carlyle agrees representative pursuant to remove one of the Carlyle Directors promptly after any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or morethis Section 1(a)).
(b) In the event that any representative designated hereunder by any party ceases to serve as a member The rights of the Board during his term Spectrum Group Stockholders to designate directors pursuant to paragraphs 1(a)(ii)(A) and (C) above shall terminate at such time as the Spectrum Group Stockholders collectively hold in the aggregate less than 20% of office for any reason, the resulting vacancy Stockholder Shares purchased by the Spectrum Group Stockholders on the Board will be filled by a representative selected by the party entitled to designate such representative pursuant to paragraph l(a). The parties agree that any director may be removed from the Board for cause by resolution adopted by a majority of the remaining directorsdate hereof.
(c) Each of Apollo and Carlyle, for so long as it remains a Shareholder hereunder, The Company shall have the right to designate and remove two representatives (each such representative, a “Board Observer”) who shall (1) have the right to receive due notice of and to attend and participate in discussions at (but not vote on any matters on which the directors are entitled to vote) all meetings of reimburse the Board and all meetings of committees of the Board, (2) have the right to receive copies of all documents members or their designees reasonable travel expenses and other information, including minutes, consents,business plans, presentation materials, budgets and financial information furnished generally to members of the Board and committees thereof, and (3) be entitled to be indemnified by the Company pursuant to the Certificate of Incorporation of the Company to the same extent mutatis mutandis as if he or she were a member of the Board (and the Company hereby agrees to so indemnify each Board Observer). Notwithstanding the preceding sentence, on any date that Carlyle and its Affiliates do not own, in the aggregate, either (i) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars (or more), Carlyle shall have the right to designate and remove one Board Observer.
(d) The Company will pay or promptly reimburse the actual reasonable out-of-pocket fees and expenses incurred (including the reasonable fees and expenses of accountants, attorneys and other advisors retained by each member of the Board and each Board Observer members) incurred in connection with attending meetings fulfilling their duties as Board members (or members of the Board or any committee of the Board) or otherwise in connection with performing services on or for the benefit of the Company or otherwise.
(d) Any vacancy on the Board existing on the date hereof or resulting from the increase in the authorized number of directors comprising the Board shall be filled by the Spectrum Group Stockholders.
(e) In order to secure the obligations of each Other Shareholder who now or hereafter holds any voting securities to vote such Person’s Shareholder Shares in accordance with the provisions of this paragraph 1, each Other Shareholder Each Stockholder hereby appoints Apollo Spectrum Equity Investors as his or its true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of his the capital stock of the Company owned by it (whether now owned or its Shareholder Shares for hereafter acquired) with respect to the election and/or removal of directors and all such other matters as expressly provided for the Board of the Company in paragraph 1. Apollo may exercise the irrevocable proxy granted order to it hereunder by any Other Shareholder at any time if any such Other Shareholder fails to comply with implement the provisions of this AgreementSection 1. The proxies proxy and powers power of attorney granted by each such Other Shareholder pursuant herein shall be deemed to this paragraph l(e) are be coupled with an interest and are given to secure the performance of such Other Shareholder’s obligations under this Agreement. Such proxies and powers interest, shall be irrevocable until termination of this paragraph 1 irrevocable, and shall survive the death, disability, incompetency, disabilitybankruptcy, bankruptcy insolvency or dissolution of each any such Shareholder Stockholder and the subsequent holders transfer of his all or its Shareholder Sharesany portion of Stockholder Shares held by such Stockholder and shall extend to the heirs, successors, assigns and personal representatives of such Stockholder. No Shareholder shall grant any proxy or become party Each such Stockholder will, from time to any voting trust time as requested by Spectrum Equity Investors, execute and deliver such further instruments, ancillary agreements or other agreement which is inconsistent withdocuments or take such other actions as may be necessary or advisable to give effect to, conflicts with confirm, evidence or violates any effectuate the purposes of the proxy granted by this Section 1(d) and each other provision of this Agreement.
(f) The provisions of this paragraph Section 1 shall terminate automatically and be of no further force and effect upon the earlier to occur of (i) the consummation of an Approved Sale and (ii) the completion of a Public Offering.
Appears in 1 contract
Voting Agreement and Proxy. (a) From and after the date hereof and until the provisions of this paragraph 1 cease to be effective, each Shareholder shall vote all of his or its Shareholder Shares which are voting shares and any other voting securities At every meeting of the Company over shareholders of ASI at which such Shareholder has voting control and shall take all other necessary or desirable actions within such holder’s control (whether in such holder’s capacity as a shareholder, director, member of a board committee or officer the adoption of the Company Merger Agreement and the approval of the Merger shall be voted upon and at every postponement or otherwiseadjournment thereof, Catalina irrevocably agrees to appear at such meeting and including, without limitation, attendance at meetings vote (in person or by proxy for purposes proxy) all of obtaining a quorum and execution its shares of written consents in lieu ASI entitled to be voted thereat (“Voting Shares”) or to cause all of meetings), and the Company shall take all necessary or desirable actions within its control (including, without limitation, calling special board and shareholder meetings), so that:
Voting Shares to be voted (i) in favor of the authorized number adoption of directors on the Board shall be seven (7);
Merger Agreement and approval of the Merger; (ii) four directors shall be designated by Apolloagainst any action, which representatives shall, as agreement or transaction (other than the adoption of the date Merger Agreement or the approval of this the Merger) or proposal (including an Acquisition Proposal (as defined in the Merger Agreement)) that would reasonably be expected to result in a breach of any material covenant, representation or warranty or any other material obligation or agreement of ASI under the Merger Agreement or that would reasonably be G▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇expected to result in any of the conditions to ASI’s obligations under the Merger Agreement not being fulfilled, B▇▇▇▇ ▇▇▇▇▇▇▇, R▇▇ ▇▇▇▇▇▇▇▇▇ and P▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Apollo Directors”);
(iii) two directors shall be designated in favor of any other matter necessary to the consummation of the Merger and the Transactions that is voted upon by Carlylethe shareholders of ASI. Catalina acknowledges receipt and review of a copy of the Merger Agreement. In furtherance of the agreements contained in this Section 2.02 and as security for such agreements, which representatives shallCatalina hereby irrevocably appoints Fairfax, the executive officers of Fairfax, and each of them individually, as the sole and exclusive attorneys-in- fact and proxies of the date of this AgreementCatalina, be B▇▇▇▇▇ ▇. ▇▇▇▇▇▇ for and C▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the “Carlyle Directors”), provided however that on any date that Carlyle and its Affiliates do not own, in the aggregatename, either (x) ten percent (10%) (or more) place and stead of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more), one director shall be designated by Carlyle;
(iv) the President of the Company shall be a director;
(v) the removal from the Board without cause of any of the Apollo Directors under paragraph l(a)(ii) above shall be at Apollo’s written request, and only upon such written request and under no other circumstances; and
(vi) the removal from the Board without cause of any of the Carlyle Directors under paragraph l(a)(iii) above shall be at Carlyle’s written request, and only upon such written request and under no other circumstances. Carlyle agrees to remove one of the Carlyle Directors promptly after any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more).
(b) In the event that any representative designated hereunder by any party ceases to serve as a member of the Board during his term of office for any reason, the resulting vacancy on the Board will be filled by a representative selected by the party entitled to designate such representative pursuant to paragraph l(a). The parties agree that any director may be removed from the Board for cause by resolution adopted by a majority of the remaining directors.
(c) Each of Apollo and Carlyle, for so long as it remains a Shareholder hereunder, shall have the right to designate and remove two representatives (each such representative, a “Board Observer”) who shall (1) have the right to receive due notice of and to attend and participate in discussions at (but not vote on any matters on which the directors are entitled to vote) all meetings of the Board and all meetings of committees of the Board, (2) have the right to receive copies of all documents and other information, including minutes, consents,business plans, presentation materials, budgets and financial information furnished generally to members of the Board and committees thereof, and (3) be entitled to be indemnified by the Company pursuant to the Certificate of Incorporation of the Company to the same extent mutatis mutandis as if he or she were a member of the Board (and the Company hereby agrees to so indemnify each Board Observer). Notwithstanding the preceding sentence, on any date that Carlyle and its Affiliates do not own, in the aggregate, either (i) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars (or more), Carlyle shall have the right to designate and remove one Board Observer.
(d) The Company will pay or promptly reimburse the actual reasonable out-of-pocket expenses incurred by each member of the Board and each Board Observer in connection with attending meetings of the Board or any committee of the Board.
(e) In order to secure the obligations of each Other Shareholder who now or hereafter holds any voting securities to vote such Person’s Shareholder Shares in accordance with the provisions of this paragraph 1, each Other Shareholder hereby appoints Apollo as his or its true and lawful proxy and attorney-in-factCatalina, with full power of substitutionsubstitution and resubstitution, to vote all of his vote, grant a consent or its Shareholder Shares for approval in respect of, or execute and deliver a proxy to vote, if and to the election and/or removal of directors and all such other matters as expressly provided for in paragraph 1. Apollo may exercise the irrevocable proxy granted to it hereunder by any Other Shareholder at any time if any such Other Shareholder extent Catalina fails to comply with the provisions agreements contained in this Section 2.02, the Voting Shares, (i) in favor of this the approval of the Merger Agreement and the transactions contemplated thereby; (ii) against any action, agreement or transaction (other than the Merger Agreement or the transactions contemplated thereby) or proposal (including an Acquisition Proposal (as defined in the Merger Agreement. The proxies and powers granted by each such Other Shareholder pursuant )) that would reasonably be expected to this paragraph l(e) are coupled with an interest and are given result in a breach of any material covenant, representation or warranty or any other material obligation or agreement of ASI under the Merger Agreement or that would reasonably be expected to secure result in any of the performance of such Other Shareholderconditions to ASI’s obligations under this Agreement. Such proxies the Merger Agreement not being fulfilled, and powers shall be irrevocable until termination (iii) in favor of this paragraph 1 and shall survive the death, incompetency, disability, bankruptcy or dissolution of each such Shareholder and the subsequent holders of his or its Shareholder Shares. No Shareholder shall grant any proxy or become party other matter necessary to any voting trust or other agreement which is inconsistent with, conflicts with or violates any provision of this Agreement.
(f) The provisions of this paragraph 1 shall terminate automatically and be of no further force and effect upon the earlier to occur of (i) the consummation of an Approved Sale the transactions contemplated by the Merger Agreement and (ii) a Public Offeringconsidered voted upon by the shareholders of ASI. THIS PROXY IS IRREVOCABLE AND COUPLED WITH AN INTEREST.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Catalina Holdings (Bermuda) LTD)
Voting Agreement and Proxy. (a) From and after the date hereof and until the provisions of this paragraph 1 cease to be effective, each Shareholder shall vote all of his or its Shareholder Shares which are voting shares and any other voting securities At every meeting of the Company over shareholders of ASI at which such Shareholder has voting control and shall take all other necessary or desirable actions within such holder’s control (whether in such holder’s capacity as a shareholder, director, member of a board committee or officer the adoption of the Company Merger Agreement and the approval of the Merger shall be voted upon and at every postponement or otherwiseadjournment thereof, Catalina irrevocably agrees to appear at such meeting and including, without limitation, attendance at meetings vote (in person or by proxy for purposes proxy) all of obtaining a quorum and execution its shares of written consents in lieu ASI entitled to be voted thereat (“Voting Shares”) or to cause all of meetings), and the Company shall take all necessary or desirable actions within its control (including, without limitation, calling special board and shareholder meetings), so that:
Voting Shares to be voted (i) in favor of the authorized number adoption of directors on the Board shall be seven (7);
Merger Agreement and approval of the Merger; (ii) four directors shall be designated by Apolloagainst any action, which representatives shall, as agreement or transaction (other than the adoption of the date Merger Agreement or the approval of this the Merger) or proposal (including an Acquisition Proposal (as defined in the Merger Agreement)) that would reasonably be expected to result in a breach of any material covenant, representation or warranty or any other material obligation or agreement of ASI under the Merger Agreement or that would reasonably be G▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇expected to result in any of the conditions to ASI’s obligations under the Merger Agreement not being fulfilled, B▇▇▇▇ ▇▇▇▇▇▇▇, R▇▇ ▇▇▇▇▇▇▇▇▇ and P▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Apollo Directors”);
(iii) two directors shall be designated in favor of any other matter necessary to the consummation of the Merger and the Transactions that is voted upon by Carlylethe shareholders of ASI. Catalina acknowledges receipt and review of a copy of the Merger Agreement. In furtherance of the agreements contained in this Section 2.02 and as security for such agreements, which representatives shallCatalina hereby irrevocably appoints Fairfax, the executive officers of Fairfax, and each of them individually, as of the date of this Agreement, be B▇▇▇▇▇ ▇. ▇▇▇▇▇▇ sole and C▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the “Carlyle Directors”), provided however that on any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more), one director shall be designated by Carlyle;
(iv) the President of the Company shall be a director;
(v) the removal from the Board without cause of any of the Apollo Directors under paragraph l(a)(ii) above shall be at Apollo’s written request, and only upon such written request and under no other circumstances; and
(vi) the removal from the Board without cause of any of the Carlyle Directors under paragraph l(a)(iii) above shall be at Carlyle’s written request, and only upon such written request and under no other circumstances. Carlyle agrees to remove one of the Carlyle Directors promptly after any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more).
(b) In the event that any representative designated hereunder by any party ceases to serve as a member of the Board during his term of office for any reason, the resulting vacancy on the Board will be filled by a representative selected by the party entitled to designate such representative pursuant to paragraph l(a). The parties agree that any director may be removed from the Board for cause by resolution adopted by a majority of the remaining directors.
(c) Each of Apollo and Carlyle, for so long as it remains a Shareholder hereunder, shall have the right to designate and remove two representatives (each such representative, a “Board Observer”) who shall (1) have the right to receive due notice of and to attend and participate in discussions at (but not vote on any matters on which the directors are entitled to vote) all meetings of the Board and all meetings of committees of the Board, (2) have the right to receive copies of all documents and other information, including minutes, consents,business plans, presentation materials, budgets and financial information furnished generally to members of the Board and committees thereof, and (3) be entitled to be indemnified by the Company pursuant to the Certificate of Incorporation of the Company to the same extent mutatis mutandis as if he or she were a member of the Board (and the Company hereby agrees to so indemnify each Board Observer). Notwithstanding the preceding sentence, on any date that Carlyle and its Affiliates do not own, in the aggregate, either (i) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars (or more), Carlyle shall have the right to designate and remove one Board Observer.
(d) The Company will pay or promptly reimburse the actual reasonable out-of-pocket expenses incurred by each member of the Board and each Board Observer in connection with attending meetings of the Board or any committee of the Board.
(e) In order to secure the obligations of each Other Shareholder who now or hereafter holds any voting securities to vote such Person’s Shareholder Shares in accordance with the provisions of this paragraph 1, each Other Shareholder hereby appoints Apollo as his or its true and lawful proxy and attorneyexclusive attorneys-in-factfact and proxies of Catalina, for and in the name, place and stead of Catalina, with full power of substitutionsubstitution and resubstitution, to vote all of his vote, grant a consent or its Shareholder Shares for approval in respect of, or execute and deliver a proxy to vote, if and to the election and/or removal of directors and all such other matters as expressly provided for in paragraph 1. Apollo may exercise the irrevocable proxy granted to it hereunder by any Other Shareholder at any time if any such Other Shareholder extent Catalina fails to comply with the provisions agreements contained in this Section 2.02, the Voting Shares, (i) in favor of this the approval of the Merger Agreement and the transactions contemplated thereby; (ii) against any action, agreement or transaction (other than the Merger Agreement or the transactions contemplated thereby) or proposal (including an Acquisition Proposal (as defined in the Merger Agreement. The proxies and powers granted by each such Other Shareholder pursuant )) that would reasonably be expected to this paragraph l(e) are coupled with an interest and are given result in a breach of any material covenant, representation or warranty or any other material obligation or agreement of ASI under the Merger Agreement or that would reasonably be expected to secure result in any of the performance of such Other Shareholderconditions to ASI’s obligations under this Agreement. Such proxies the Merger Agreement not being fulfilled, and powers shall be irrevocable until termination (iii) in favor of this paragraph 1 and shall survive the death, incompetency, disability, bankruptcy or dissolution of each such Shareholder and the subsequent holders of his or its Shareholder Shares. No Shareholder shall grant any proxy or become party other matter necessary to any voting trust or other agreement which is inconsistent with, conflicts with or violates any provision of this Agreement.
(f) The provisions of this paragraph 1 shall terminate automatically and be of no further force and effect upon the earlier to occur of (i) the consummation of an Approved Sale the transactions contemplated by the Merger Agreement and (ii) a Public Offeringconsidered voted upon by the shareholders of ASI. THIS PROXY IS IRREVOCABLE AND COUPLED WITH AN INTEREST.
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Sources: Assignment and Assumption Agreement (Tower Group International, Ltd.)
Voting Agreement and Proxy. (a) From and after the date hereof and until the provisions of this paragraph 1 cease to be effective, each Shareholder shall vote all of his or its Shareholder Shares which are voting shares and any other voting securities of the Company over which such Shareholder has voting control and shall take all other necessary or desirable actions within such holder’s control (whether in such holder’s capacity as a shareholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings), and the Company shall take all necessary or desirable actions within its control (including, without limitation, calling special board and shareholder meetings), so that:
(i) the authorized number of directors on the Board shall be seven (7);
(ii) four directors shall be designated by Apollo, which representatives shall, as of the date of this Agreement, be G▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, B▇▇▇▇ ▇▇▇▇▇▇▇, R▇▇ ▇▇▇▇▇▇▇▇▇ and P▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Apollo Directors”);
(iii) two directors shall be designated by Carlyle, which representatives shall, as of the date of this Agreement, be B▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and C▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the “Carlyle Directors”), provided however that on any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more), one director shall be designated by Carlyle;
(iv) the President of the Company shall be a director;
(v) the removal from the Board without cause of any of the Apollo Directors under paragraph l(a)(ii1(a)(ii) above shall be at Apollo’s written request, and only upon such written request and under no other circumstances; and
(vi) the removal from the Board without cause of any of the Carlyle Directors under paragraph l(a)(iii1(a)(iii) above shall be at Carlyle’s written request, and only upon such written request and under no other circumstances. Carlyle agrees to remove one of the Carlyle Directors promptly after any date that Carlyle and its Affiliates do not own, in the aggregate, either (x) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars ($100,000,000) (or more).
(b) In the event that any representative designated hereunder by any party ceases to serve as a member of the Board during his term of office for any reason, the resulting vacancy on the Board will be filled by a representative selected by the party entitled to designate such representative pursuant to paragraph l(a1(a). The parties agree that any director may be removed from the Board for cause by resolution adopted by a majority of the remaining directors.
(c) Each of Apollo and Carlyle, for so long as it remains a Shareholder hereunder, shall have the right to designate and remove two representatives (each such representative, a “Board Observer”) who shall (1) have the right to receive due notice of and to attend and participate in discussions at (but not vote on any matters on which the directors are entitled to vote) all meetings of the Board and all meetings of committees of the Board, (2) have the right to receive copies of all documents and other information, including minutes, consents,, business plans, presentation materials, budgets and financial information furnished generally to members of the Board and committees thereof, and (3) be entitled to be indemnified by the Company pursuant to the Certificate of Incorporation of the Company to the same extent mutatis mutandis as if he or she were a member of the Board (and the Company hereby agrees to so indemnify each Board Observer). Notwithstanding the preceding sentence, on any date that Carlyle and its Affiliates do not own, in the aggregate, either (i) ten percent (10%) (or more) of the issued and outstanding Shareholder Shares or (y) shares of the Company Stock with a Fair Market Value of one hundred million dollars (or more), Carlyle shall have the right to designate and remove one Board Observer.
(d) The Company will pay or promptly reimburse the actual reasonable out-of-pocket expenses incurred by each member of the Board and each Board Observer in connection with attending meetings of the Board or any committee of the Board.
(e) In order to secure the obligations of each Other Shareholder who now or hereafter holds any voting securities to vote such Person’s Shareholder Shares in accordance with the provisions of this paragraph 1, each Other Shareholder hereby appoints Apollo as his or its true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of his or its Shareholder Shares for the election and/or removal of directors and all such other matters as expressly provided for in paragraph 1. Apollo may exercise the irrevocable proxy granted to it hereunder by any Other Shareholder at any time if any such Other Shareholder fails to comply with the provisions of this Agreement. The proxies and powers granted by each such Other Shareholder pursuant to this paragraph l(e1(e) are coupled with an interest and are given to secure the performance of such Other Shareholder’s obligations under this Agreement. Such proxies and powers shall be irrevocable until termination of this paragraph 1 and shall survive the death, incompetency, disability, bankruptcy or dissolution of each such Shareholder and the subsequent holders of his or its Shareholder Shares. No Shareholder shall grant any proxy or become party to any voting trust or other agreement which is inconsistent with, conflicts with or violates any provision of this Agreement.
(f) The provisions of this paragraph 1 shall terminate automatically and be of no further force and effect upon the earlier to occur of (i) the consummation of an Approved Sale and (ii) a Public Offering.
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