Execution Copy
TENDER AND VOTING AGREEMENT
This TENDER AND VOTING AGREEMENT (this "Agreement") is made and entered
into as of February 16, 2010, by and among ▇. ▇. ▇▇▇▇▇▇ Company, a Pennsylvania
corporation ("Parent"), ▇▇▇▇▇▇ ▇▇▇▇▇▇ Company, a West Virginia corporation and
wholly-owned subsidiary of Parent ("Acquisition Co."), and the individual or
entity identified on Schedule A attached hereto (the "Shareholder").
WHEREAS, simultaneously with the execution of this Agreement, Parent,
Acquisition Co. and Portec Rail Products, Inc., a West Virginia corporation (the
"Company"), are entering into an Agreement and Plan of Merger, dated as of the
date hereof (as the same may be amended or supplemented, the "Merger
Agreement"), which provides, among other things, for the acquisition of the
Company by Parent by means of a cash tender offer (the "Offer") by Acquisition
Co. for all outstanding shares of common stock, $1.00 par value per share, of
the Company (the "Company Common Stock") and for the subsequent merger of
Acquisition Co. with and into the Company with the Company continuing as the
surviving entity (the "Merger");
WHEREAS, as of the date hereof, the Shareholder is the Beneficial Owner (as
defined below) of the outstanding shares of Company Common Stock set forth
opposite the Shareholder's name in Schedule A (the "Owned Shares"); and
WHEREAS, as an inducement and a condition to Parent's and Acquisition Co.'s
willingness to enter into the Merger Agreement and incurring the obligations set
forth therein, the Shareholder has agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein and in
the Merger Agreement, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Certain Definitions. (a) Capitalized terms used but not defined in this
Agreement shall have the meanings ascribed to such terms in the Merger
Agreement. In addition, for purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified. For
purposes of this Agreement, with respect to the Shareholder, "Affiliate" shall
not include the Company or the Persons that directly, or indirectly through one
or more intermediaries, are controlled by the Company.
"Beneficially Owned" or "Beneficial Ownership" with respect to any
securities means having both voting power and investment power (as determined
pursuant to Rule 13d-3(a) under the Exchange Act) over such securities,
including pursuant to any agreement, arrangement or understanding, whether or
not in writing. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all Affiliates of such Person and all other Persons with
whom such Person would constitute a "Group" within the meaning of Section 13(d)
of the Exchange Act and the rules promulgated thereunder.
"Beneficial Owner" with respect to any securities means a Person who has
Beneficial Ownership of such securities.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Proposed Business Combination" means the Offer, the Merger and the related
transactions contemplated by the Merger Agreement.
"Transfer" means, with respect to a security, the sale, transfer, pledge,
hypothecation, encumbrance, assignment, gift or other disposition of such
security or the Beneficial Ownership thereof (other than by operation of law),
the offer to make such a sale, transfer, pledge, hypothecation, encumbrance,
assignment, gift or other disposition, and each option, agreement, arrangement
or understanding, whether or not in writing, to effect any of the foregoing. As
a verb, "Transfer" shall have a correlative meaning.
2. Tender of Shares.
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(a) The Shareholder hereby agrees to validly tender (or cause the record
owner of such shares to validly tender), pursuant to and in accordance with the
terms of the Offer, not later than the 20th business day after commencement of
the Offer such Shareholder's Owned Shares. In furtherance of the foregoing, at
the time of such tender, the Shareholder shall: (i) deliver to the depositary
designated in the Offer (the "Depositary"): (A) a letter of transmittal with
respect to the Owned Shares complying with the terms of the Offer; (B) a
certificate or certificates representing such Owned Shares or an "agent's
message" (or such other evidence, if any, of transfer as the Depositary may
reasonably request) in the case of a book-entry transfer of any Owned Shares;
and (C) all other documents or instruments, to the extent applicable, in the
form required to be delivered by the shareholders of the Company pursuant to the
terms of the Offer; and/or (ii) cause its broker or such other Person that is
the holder of record of any Owned Shares to tender such Owned Shares pursuant to
and in accordance with the terms of the Offer and within the timeframe specified
in the first sentence of this Section 2(a). The Shareholder shall not withdraw
any shares tendered pursuant to this Section 2(a) unless this Agreement shall
have been terminated in accordance with Section 11 below.
(b) If the Offer is terminated or withdrawn by Acquisition Co., or the
Merger Agreement is validly terminated prior to the Acceptance Time, Parent and
Acquisition Co. shall promptly return, and shall cause any depository acting on
behalf of Parent and Acquisition Co. to return, all tendered Owned Shares to the
registered holders of the Owned Shares tendered in the Offer.
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3. No Disposition of Owned Shares. The Shareholder agrees that from and
after the date hereof, except as contemplated by this Agreement, the Shareholder
will not (as a Shareholder, trustee or custodian) (i) Transfer or agree to
Transfer any of such Shareholder's Owned Shares or any options or warrants or
other rights held or owned by such Shareholder to acquire Company Common Stock
(other than any transfer of an option or warrant to the Company in connection
with the exercise of such option or warrant by such Shareholder) without
Parent's prior written consent (which consent in the case of a Shareholder which
is a natural Person shall not be unreasonably withheld or delayed in the context
of a Transfer to any member of the immediate family of such Shareholder or to
any trust the Beneficial Ownership of which is held by such Shareholder or the
members of such Shareholder's immediate family, provided in each case that such
transferee agrees, in a form satisfactory to Parent, to be bound by the terms of
this Agreement), or (ii) grant any proxy or power-of-attorney with respect to
any such Owned Shares other than pursuant to this Agreement.
4. Agreement to Vote; Dissenter's Rights. The Shareholder agrees that (a)
at such time as the Company conducts a meeting (including any adjournment
thereof) of or otherwise seeks a vote or consent of its shareholders for the
purpose of approving the Merger Agreement and the transactions contemplated by
the Merger Agreement, including the Merger, such Shareholder will vote, or
provide a consent with respect to, all of such Shareholder's Owned Shares which,
as of the relevant record date, such Shareholder has the power to vote in favor
of approving the Merger Agreement and the transactions contemplated by the
Merger Agreement, including the Merger, and (b) such Shareholder will (at any
meeting of shareholders or in connection with any consent solicitation) vote all
of such Shareholder's Owned Shares which, as of the relevant record date, such
Shareholder has the power to vote, against, and will not consent to, any
Alternative Transaction Proposal with a Person other than Parent and Acquisition
Co. or any action that would or is designed to delay, prevent or frustrate the
Proposed Business Combination. Without limiting the foregoing, it is understood
that the obligations in this Section 4 shall remain applicable in respect of
each meeting of shareholders of the Company duly called for the purpose of
approving the Merger Agreement and the transactions contemplated thereby,
including the Merger, regardless of the position of the Company's board of
directors as to the Proposed Business Combination at the time of such meeting.
The Shareholder hereby irrevocably and unconditionally waives, and agrees not to
assert, exercise or perfect, any and all rights he, she or it may have as to
appraisal, dissent or any similar or related matter with respect to any of such
Shareholder's Owned Shares that may arise with respect to the Merger or any of
the contemplated transactions, including under Sections 31D-13-1301 through
31D-13-1331 of the West Virginia Business Corporation Act.
5. Irrevocable Proxy. The Shareholder hereby revokes (and agrees to cause
to be revoked) all proxies, if any, that it has heretofore granted with respect
to the Owned Shares. The Shareholder hereby irrevocably appoints Parent as
attorney-in-fact and proxy for and on behalf of such Shareholder, until this
Agreement is terminated, for and in the name, place and stead of such
Shareholder, to:
(a) attend any and all Company Shareholder Meetings;
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(b) vote, express consent or dissent or issue instructions to the record
holder to vote such Shareholder's Owned Shares in accordance with the provisions
of Section 4 at any and all Company Shareholder Meetings; and
(c) if applicable, grant or withhold, or issue instructions to the record
holder to grant or withhold, in accordance with the provisions of Section 4, all
written consents with respect to the Owned Shares at any and all Company
Shareholder Meetings or otherwise.
The Shareholder hereby affirms that the irrevocable proxy set forth in this
Section is given in connection with, and in consideration of, the execution of
the Merger Agreement by Parent and Acquisition Co., and that such irrevocable
proxy is given to secure the performance of the duties of such Shareholder under
this Agreement. The Shareholder hereby further affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be revoked. The
Shareholder hereby ratifies and confirms all actions that such irrevocable
proxyholder 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 31D-7-722 of the West Virginia Business Corporation
Act.
6. Information and Notice. The Shareholder: (a) consents to and authorizes
the publication and disclosure by Parent, Acquisition Co. or the Company, as
applicable, of such Shareholder's identity and holdings of Owned Shares, the
nature of such Shareholder's commitments, arrangements and understandings under
this Agreement (including, for the avoidance of doubt, the disclosure of this
Agreement) and any other information, in each case, that Parent, Acquisition Co.
or the Company, as applicable, reasonably determines is required to be disclosed
by applicable legal requirements in any press release, any of the Offer
Documents, the Schedule 14D-9 or any other disclosure document (whether or not
filed with the SEC) in connection with the Offer, the Merger and the other
transactions contemplated thereby; and (b) agrees to promptly give to Parent,
Acquisition Co. or the Company, as applicable, any information it may reasonably
require for the preparation of any such disclosure documents. The Shareholder:
(i) represents and warrants that none of the information provided by or on
behalf of such Shareholder pursuant to this Section 6 will, at the time it so
provided, contain any untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and (ii) agrees to promptly notify Parent, Acquisition Co. and
the Company, as applicable, of any required corrections with respect to any such
information, if and to the extent that any such information shall have become
false or misleading in any material respect. Notwithstanding the foregoing,
Parent, Acquisition Co. and the Company shall use reasonable efforts to inform
the Shareholder of any public disclosure of such information about the
Shareholder prior to making such disclosure public. The Shareholder shall
consult with Parent before issuing any press releases or otherwise making any
public statements with respect to the transactions contemplated hereby and shall
not issue any such press release or make any public statement without the
approval of Parent, except as may be required by applicable legal requirements.
The Shareholder shall notify Parent of any development occurring after the date
hereof that causes, or that would reasonably be expected to cause, any breach of
any of such Shareholder's representations or warranties in this Agreement.
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7. Additional Stock. The Shareholder agrees that any additional shares of
Company Common Stock or securities convertible into Company Common Stock over
which it acquires Beneficial Ownership, whether pursuant to existing stock
option agreements, warrants or otherwise, shall become Owned Shares and be
subject to the provisions of this Agreement.
8. No Solicitation.
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(a) Shareholder will not, in its capacity as a shareholder of the Company,
and will use its reasonable best efforts to ensure that its investment bankers,
attorneys, accountants, agents or other advisors or representatives (the
"Shareholder Representatives") will not, directly or indirectly, take any action
with respect to any Alternative Transaction Proposal that the Company is
prohibited from taking under Section 5.3 of the Merger Agreement; provided that,
in the event the Company takes permissible action under Section 5.3 of the
Merger Agreement, the Shareholder will be entitled to participate in all actions
that the Company is or would be entitled to take under Section 5.3 of the Merger
Agreement so long as such actions are taken in compliance with such Section 5.3.
(b) Shareholder will cease and cause to be terminated all existing
discussions or negotiations conducted by Shareholder or at Shareholder's behest
with respect to any Alternative Transaction Proposal (other than with Parent and
Acquisition Co.).
9. Representations, Warranties and Covenants of the Shareholders. The
Shareholder hereby represents and warrants to, and agrees with, Parent and
Acquisition Co. as follows:
(a) If such Shareholder is not a natural Person, (i) such Shareholder is
duly organized and validly existing under its jurisdiction of formation, (ii)
such Shareholder has full corporate, limited liability company, partnership or
trust power and authority to execute and deliver this Agreement and to perform
its obligations hereunder, and (iii) the execution, delivery and performance by
such Shareholder of this Agreement and the consummation by such Shareholder of
the transactions contemplated hereby have been duly authorized by all necessary
corporate, limited liability company, partnership or trust action on the part of
such Shareholder. If such Shareholder is a natural Person, he or she (or the
representative or fiduciary signing on his or her behalf, as applicable) has
full legal capacity, right and authority to execute and deliver this Agreement
and to perform his or her obligations hereunder.
(b) This Agreement has been duly and validly executed and delivered by such
Shareholder and constitutes a valid, legal and binding agreement of such
Shareholder, enforceable against such Shareholder in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors' rights or by general equity
principles.
(c) Such Shareholder is the sole Beneficial Owner of such Shareholder's
Owned Shares, other than those Owned Shares Beneficially Owned by a family trust
or child of such Shareholder. Such Shareholder has the sole right to vote, or
cause to be voted, and to dispose, or cause the disposition, of such
Shareholder's Owned Shares and there exist no limitations on its ability to
exercise such right. The Shareholder has good and marketable title (which may
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include holding in nominee or "street" name) to all of such Shareholder's Owned
Shares (other than those Owned Shares Beneficially Owned by a family trust or
child of such Shareholder), free and clear of all liens (other than as created
by this Agreement and restrictions on Transfer under applicable securities
laws). The Owned Shares constitute all of the capital stock of the Company
Beneficially Owned by such Shareholder.
(d) Neither the execution nor delivery of this Agreement by such
Shareholder nor the Shareholder's consummation of the transactions contemplated
hereby will conflict with, result in any violation of or constitute a default
under (i) any mortgage, bond, indenture, agreement, instrument or obligation to
which such Shareholder is a party or by which such Shareholder or any of the
Owned Shares is bound, (ii) such Shareholder's constituent documents if the
Shareholder is not a natural person, or (iii) any judgment, decree, order or
material law or regulation of any governmental agency or authority in the United
States by which such Shareholder is bound.
(e) Such Shareholder understands and acknowledges that each of Parent and
Acquisition Co. is entering into the Merger Agreement in reliance upon such
Shareholder's execution, delivery and performance of this Agreement.
10. Representations and Warranties of Parent and Acquisition Co. Parent
represents and warrants to the Shareholder as follows:
(a) Parent is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania with all requisite
corporate power and authority to own, operate and lease its properties, to carry
on its business as now being conducted, and to enter into this Agreement and
perform its obligations hereunder.
(b) Parent owns all of the issued and outstanding shares of Acquisition Co.
Acquisition Co. is a corporation duly organized, validly existing and in good
standing under the laws of the State of West Virginia with all requisite
corporate power to enter into this Agreement and perform its obligations
hereunder.
(c) Each of Parent and Acquisition Co. has taken all necessary corporate
action to approve this Agreement and the performance of its obligations
hereunder. This Agreement has been duly and validly executed and delivered by
each of Parent and Acquisition Co. and constitutes a valid, legal and binding
agreement of each of Parent and Acquisition Co., respectively, enforceable
against each of Parent and Acquisition Co. in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors' rights or by general equity
principles.
(d) Neither the execution nor delivery of this Agreement by Parent or
Acquisition Co. nor Parent's or Acquisition Co.'s consummation of the
transactions contemplated hereby will conflict with, result in any violation of,
or constitute a default under, the Articles of Incorporation or Bylaws of Parent
or Acquisition Co. or any agreement, mortgage, indenture, license, permit, lease
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or other instrument material to Parent and its subsidiaries taken as a whole or
any judgment, decree, order, or any material law or regulation of any
governmental agency or authority in the United States by which Parent or any of
its subsidiaries is bound.
11. Termination. This Agreement, and all rights and obligations of the
parties hereunder shall terminate upon the earliest of: (i) the Effective Time
of the Merger, (ii) as to the rights and obligations associated with any Owned
Shares under Section 2 hereof, the acceptance for payment of such Owned Shares
by Parent or Acquisition Co. in the Offer, (iii) the termination of this
Agreement by written notice from Parent to the Shareholder, (iv) the termination
of the Offer by Parent or Acquisition Co., or (v) the date upon which the Merger
Agreement is terminated in accordance with its terms without the Merger having
been consummated or (vi) the Merger Agreement shall have been terminated by
Company pursuant to Section 8.1(g) or 8.1(h) of the Merger Agreement; provided,
however, that: (A) Section 12(a) and 12(e) shall survive such termination; and
(B) no such termination shall relieve or release the Shareholder, Parent or
Acquisition Co. from any obligations or liabilities arising out of his or its
breach of this Agreement prior to its termination.
12. Miscellaneous.
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(a) Costs and Expenses. Except as otherwise provided in this Agreement, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
(b) Execution in Counterparts. For the convenience of the parties, this
Agreement and any amendments, supplements, waivers and modifications may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same document.
(c) Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties and their respective
successors, personal or legal representatives, executors, administrators, heirs,
distributees, devisees, legatees and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any party (whether by operation of law or otherwise), in whole or in
part, without the prior written consent of the other parties; provided, that
Parent or Acquisition Co. may assign any or all rights under this Agreement to
any subsidiary of Parent, and Acquisition Co. may assign any or all rights under
this Agreement to Parent or to another subsidiary of Parent.
(d) Amendments and Waivers. This Agreement may not be amended, changed,
supplemented, or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by the parties hereto; provided, that
each of Parent and Acquisition Co. may waive compliance by the Shareholder with
any representation, agreement or condition otherwise required to be complied
with by any other party under this Agreement or release the Shareholder from its
obligations under this Agreement, but any such waiver or release shall be
effective only if in a writing executed by Parent and Acquisition Co.
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(e) Notices. Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received: (i) if delivered by hand, when
delivered; (ii) if sent via facsimile with confirmation of receipt, when
transmitted and receipt is confirmed; (iii) if sent by electronic mail,
telegram, cablegram or other electronic transmission, upon delivery; (iv) if
sent by registered, certified or first class mail, the third business day after
being sent; and (v) if sent by overnight delivery via a national courier
service, one business day after being sent in each case to the address or
facsimile telephone number set forth beneath the name of such party below (or to
such other address or facsimile telephone number as such party shall have
specified in a written notice given to the other parties hereto):
If to Parent or
Acquisition Co.: ▇. ▇. ▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President and General Counsel
fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PC
One Oxford Centre
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Shareholder: at the address shown on Schedule A hereto.
With a copy to: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(f) Inadequate Remedy at Law; Specific Performance. The Shareholder
acknowledges and agrees that in the event of any breach of this Agreement,
Parent would be irreparably and immediately harmed and could not be made whole
by monetary damages. It is accordingly agreed with respect to any provision of
this Agreement that (i) Shareholder will waive, in any action for specific
performance, the defense of adequacy of a remedy at law, and (ii) Parent shall
be entitled, in addition to any other remedy to which it may be entitled at law
or in equity, to compel specific performance of this Agreement.
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(g) Cumulative Rights, Powers and Remedies. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party. The failure of any party
hereto to exercise any right, power or remedy provided under this Agreement or
otherwise available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder, and any
custom or practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
(h) Entire Agreement; No Third Party Beneficiaries. This Agreement, along
with the specific references to the Merger Agreement, constitutes the complete,
final and exclusive agreement among the parties and supersedes any and all prior
agreements and understandings, written or oral, among the parties heretofore
made with respect to the subject matter hereof. Nothing in this Agreement,
express or implied, is intended to or shall confer upon any other Person any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
(i) Governing Law; Jurisdiction and Venue. This Agreement shall be governed
by, and construed in accordance with, the laws of the Commonwealth of
Pennsylvania, regardless of any conflicts-of-law principles (it being
understood, however, that with respect to any matters of corporate law required
to be governed by the laws of the State of West Virginia, such laws shall
apply). In any action between or among any of the parties arising out of or
relating to this Agreement or any of the transactions contemplated by this
Agreement and the Merger Agreement: (a) each of the parties irrevocably and
unconditionally consents and submits to the exclusive jurisdiction and venue of
the state and federal courts located in the Western District of the Commonwealth
of Pennsylvania (and agrees not to commence any such action except in such
courts) and irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action brought in such court has been
brought in an inconvenient forum; (b) if any such action is commenced in a state
court, then, subject to applicable Law, no party shall object to the removal of
such action to any federal court located in the Western District of the
Commonwealth of Pennsylvania; and (c) each of the parties irrevocably consents
to service of process by first-class certified mail, return receipt requested,
postage prepaid, to the address at which such party is to receive notice in
accordance with Section 12(e) hereof. EACH PARTY ACKNOWLEDGES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS. EACH PARTY
ACKNOWLEDGES, AGREES AND CERTIFIES THAT: (A) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD, IN THE EVENT OF LITIGATION, SEEK TO PREVENT OR DELAY
ENFORCEMENT OF EITHER OF SUCH WAIVERS; (B) IT UNDERSTANDS AND HAS CONSIDERED THE
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IMPLICATIONS OF SUCH WAIVERS; (C) IT MAKES SUCH WAIVERS VOLUNTARILY; AND (D) IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(i).
(j) Severability. If any term, provision, covenant or restriction contained
in this Agreement is held by a court or a federal or state regulatory agency of
competent jurisdiction to be invalid, void or unenforceable under any rule of
law in any particular respect or under any particular circumstances, the
remainder of the terms, provisions and covenants and restrictions contained in
this Agreement shall remain in full force and effect, and shall in no way be
affected, impaired or invalidated. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
(k) Interpretation. The section and paragraph captions herein are for
convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
The words "include," "includes," and "including" shall be deemed to be followed
by "without limitation" whether or not they are in fact followed by such words
or words of like import.
13. Shareholder Capacity. Neither the Shareholder executing this Agreement
nor any partner, member, employee or Affiliate of such Shareholder who is or
becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such a director or
officer, and this Agreement does not bind any partner, member, employee or
Affiliate of such Shareholder in such person's capacity as a director or officer
of the Company. The Shareholder executes this Agreement solely in such
Shareholder's capacity as the owner of record and/or Beneficial Owner of the
Owned Shares or as having the power to vote or dispose of the Owned Shares and
nothing herein (including in Section 4) shall limit or affect any actions taken
or omitted to be taken by such Shareholder, or any partner, member, employee or
Affiliate of such Shareholder, in his or her capacity as an officer or director
of the Company (including, for the avoidance of doubt, any action in the
discharge of fiduciary duties in compliance with Section 5.3 of the Merger
Agreement); provided, that nothing in this Section 13 shall be deemed to permit
such Shareholder to take any action on behalf of the Company that is prohibited
by the Merger Agreement.
14. Further Assurances. From time to time, at Parent's or Acquisition
Co.'s request and without further consideration, the Shareholder shall execute
and deliver such additional documents and take all such further lawful action as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
[Remainder of page intentionally left blank]
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[Shareholders' Signature Pages to Shareholder Tender Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
[NAME OF SHAREHOLDER]
By:_________________________________
Name:__________________________
Title:__________________________
[Parent's and Acquisition Co.`s Signature Page to Tender and Voting Agreement]
PARENT:
▇. ▇. ▇▇▇▇▇▇ COMPANY
By:
---------------------------------------
Its: ________________________________
ACQUISITION CO.:
▇▇▇▇▇▇ ▇▇▇▇▇▇ COMPANY
By:
---------------------------------------
Its: _____________________________
SCHEDULE A
SHAREHOLDER
NAME ADDRESS/FAX # NUMBER PERCENTAGE
OF SHARES OF OWNERSHIP
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