Common use of Covenants of Each Shareholder Clause in Contracts

Covenants of Each Shareholder. Each Shareholder, severally and not jointly, covenants and agrees as follows: (1) At any meeting of the shareholders of CDnow called to seek the CDnow Shareholder Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement or any Transaction is sought, the Shareholder shall, including by executing a written consent solicitation if requested by Time Warner and Sony, vote (or cause to be voted) the Subject Shares of the Shareholder in favor of granting the CDnow Shareholder Approval. (2) The Shareholder hereby irrevocably grants to, and appoints Time Warner or Sony, or any of them, and any individual designated in writing by any of them, and each of them individually, as the Shareholder's proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholder, to vote the Subject Shares of the Shareholder, or grant a consent or approval in respect of the Subject Shares of the Shareholder in a manner consistent with this Section 3. The Shareholder understands and acknowledges that Time Warner and Sony are entering into the Merger Agreement in reliance upon the Shareholder's execution and delivery of this Agreement. The Shareholder hereby affirms that the irrevocable proxy set forth in this Section 3(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 the 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 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 1759 of the PBCL. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of Sections 3(a) and 3(b). (b) At any meeting of shareholders of CDnow or at any adjournment thereof or in any other circumstances upon which the Shareholder's vote, consent or other approval is sought, the Shareholder shall vote (or cause to be voted) the Subject Shares of the Shareholder against (i) any Acquisition Agreement, merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by CDnow (other than the Merger Agreement and the Transactions), (ii) any CDnow Takeover Proposal and (iii) any amendment of the CDnow Charter or the CDnow Bylaws or other proposal or transaction involving CDnow or any CDnow Subsidiary, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify any provision of the Merger Agreement, any other Transaction Agreement, any Transaction or change in any manner the voting rights of any class of CDnow Capital Stock. The Shareholder shall not commit or agree to take any action inconsistent with the foregoing. (c) Other than this Agreement, the Shareholder shall not (i) except as set forth on Schedule A attached hereto, sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares to any person other than pursuant to the Transactions or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares and shall not commit or agree to take any of the foregoing actions; provided, however, that, at any time that is not more than three days prior to the date on which such tender offer expires, the Shareholder may Transfer the Subject Shares pursuant to any tender offer solely involving cash consideration and constituting a Superior CDnow Proposal (it being understood that any voting rights with respect to such Transferred Subject Shares shall also be transferred). (d) The Shareholder shall not, nor shall it authorize or permit any employee of, or any investment banker, financial advisor, attorney, accountant or other advisor or representative retained by, the Shareholder to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any action designed to facilitate, any inquiries or the making of a proposal which constitutes, or may reasonably be expected to lead to, any CDnow Takeover Proposal, (ii) participate in any discussions or negotiations regarding any CDnow Takeover Proposal or (iii) enter into any agreement with respect to any CDnow Takeover Proposal; provided, however, that the Shareholder may participate in discussions or negotiations with any person regarding a Superior CDnow Proposal if at such time CDnow is permitted to engage in, and is actually engaged in, discussions or negotiations with such person pursuant to Section 7.02(a) of the Merger Agreement. The Shareholder promptly shall advise Time Warner and Sony orally and in writing of any request for information or of any CDnow Takeover Proposal, or any inquiry made to the Shareholder with respect to or that could lead to any CDnow Takeover Proposal, the material terms and conditions of such request, CDnow Takeover Proposal or inquiry and the identity of the person making any such request, CDnow Takeover Proposal or inquiry. The Shareholder will keep Time Warner, Sony and CDnow informed of the status and details (including amendments and proposed amendments) of any such request, CDnow Takeover Proposal or inquiry. (e) The Shareholder 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 Transactions. The Shareholder shall not issue any press release or make any other public statement with respect to any Transaction Agreement or any Transaction without the prior consent of Time Warner and Sony, except as may be required by applicable Law. (f) The Shareholder hereby consents to and approves the actions taken by the CDnow Board in approving the Transaction Agreements and the Transactions. The Shareholder hereby waives, and agrees not to exercise or assert, any dissent rights under Subchapter D in connection with the Transactions. (g) If, at the time the Merger Agreement is submitted for approval to the shareholders of CDnow, the Shareholder is an "affiliate" of CDnow for purposes of Rule 145 under the Securities Act, the Shareholder shall deliver to Time Warner and Sony at least 30 days prior to the Closing a written agreement substantially in the form attached as Exhibit R to the Merger Agreement.

Covenants of Each Shareholder. Each Shareholder, severally and not jointly, covenants and agrees as follows: (1) At any meeting of the shareholders of CDnow the Company called to seek the CDnow Shareholder Company Shareholders’ Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, the Merger or any other Transaction transaction contemplated by the Merger Agreement or any Transaction is sought, the such Shareholder shall, including by executing a written consent solicitation if requested by Time Warner and Sony, shall vote (or cause to be voted) the Subject Shares of the such Shareholder in favor of granting the CDnow Shareholder Company Shareholders’ Approval. (2) The Such Shareholder hereby irrevocably grants to, and appoints Time Warner or Sonyappoints, Parent and Xxxxxxxxx Electric Holdings Inc., or any of them, and any individual designated in writing by any of them, and each of them individually, as the such Shareholder's ’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the such Shareholder, to vote the Subject Shares of the such Shareholder, or grant a consent or approval in respect of the Subject Shares of the such Shareholder in a manner consistent with this Section 3. The Such Shareholder understands and acknowledges that Time Warner and Sony are Parent is entering into the Merger Agreement in reliance upon the such Shareholder's ’s execution and delivery of this Agreement. The Such Shareholder hereby affirms that the irrevocable proxy set forth in this Section 3(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 the such Shareholder under this Agreement. The Such Shareholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. The Such Shareholder 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 1759 7.22 of Chapter 156D of the PBCLMBCA. The proxy and power of attorney granted by each Shareholder is a durable power of attorney and shall survive the bankruptcy, death or incapacity of such Shareholder. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of Sections 3(a) and 3(b). (b) At any meeting of shareholders of CDnow the Company or at any adjournment thereof or in any other circumstances upon which the such Shareholder's ’s vote, consent or other approval is sought, the such Shareholder shall vote (or cause to be voted) the Subject Shares of the such Shareholder against (i) any Acquisition Agreement, mergermerger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by CDnow (other than the Merger Agreement and the Transactions)Company, (ii) any CDnow Takeover Acquisition Proposal and (iii) any amendment of the CDnow Charter articles of organization or bylaws of the CDnow Bylaws Company or other proposal or transaction involving CDnow the Company or any CDnow Company Subsidiary, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify any provision of the Merger Agreement, the Merger or any other Transaction Agreement, any Transaction transaction contemplated by the Merger Agreement or change in any manner the voting rights of any class of CDnow Company Capital Stock. The Such Shareholder shall not commit or agree to take any action inconsistent with the foregoing. (c) Other than this Agreement, the such Shareholder shall not (iA) except as set forth on Schedule A attached hereto, sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "“Transfer"”), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares to any person other than pursuant to the Transactions Merger or (iiB) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares and shall not commit or agree to take any of the foregoing actions, other than any such Transfer intended solely for the purpose of planning for the orderly handling, disposition and administration of such Shareholder’s estate; provided, however, that, at any time that is not more than three days prior to the date on which such tender offer expires, the Shareholder may Transfer the Subject Shares pursuant to any tender offer solely involving cash consideration and constituting a Superior CDnow Proposal (it being understood that any voting rights with respect such transferee agrees to such Transferred Subject Shares shall also be transferred)bound by the terms of this Agreement. (d) The Such Shareholder shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, financial advisor, attorney, accountant attorney or other advisor adviser or representative retained byof, the such Shareholder to, directly or indirectly through another person, (i) directly or indirectly solicit, initiate or encourage the submission of, any Acquisition Proposal, (including by way of furnishing information)ii) enter into any agreement with respect to any Acquisition Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate, facilitate any inquiries or the making of a any proposal which that constitutes, or may reasonably be expected to lead to, any CDnow Takeover Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any CDnow Takeover Proposal or (iii) enter into any agreement with respect to any CDnow Takeover Proposal; provided, however, that the Shareholder may participate in discussions or negotiations with any person regarding a Superior CDnow Proposal if at such time CDnow is permitted to engage in, and is actually engaged in, discussions or negotiations with such person pursuant to Section 7.02(a) of the Merger Agreement. The Such Shareholder promptly shall advise Time Warner and Sony Parent orally and in writing of any request for information Acquisition Proposal or of any CDnow Takeover Proposal, or any inquiry made to the such Shareholder with respect to or that could lead to any CDnow Takeover Acquisition Proposal, the material terms and conditions of such request, CDnow Takeover Proposal or inquiry and the identity of the person making any such request, CDnow Takeover Acquisition Proposal or inquiry. The Shareholder will keep Time Warner, Sony inquiry and CDnow informed of the status and details (including amendments and proposed amendments) material terms of any such request, CDnow Takeover Acquisition Proposal or inquiry. (e) The Such Shareholder shall use all reasonable its best 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 TransactionsMerger and the other transactions contemplated by the Merger Agreement. The Such Shareholder shall not issue any press release or make any other public statement with respect to any Transaction Agreement the Merger or any Transaction other transaction contemplated by the Merger Agreement without the prior consent of Time Warner and SonyParent, except as may be required by applicable Lawlaw. (f) The Such Shareholder hereby consents to and approves the actions taken by the CDnow Board of Directors of the Company in approving the Transaction Agreements Merger Agreement, the Merger and the Transactionsother transactions contemplated by the Merger Agreement. The Such Shareholder hereby waives, and agrees not to exercise or assert, any dissent appraisal rights under Subchapter D the MBCA in connection with the TransactionsMerger. (g) If, at the time the Merger Agreement is submitted for approval to the shareholders of CDnow, the Shareholder is an "affiliate" of CDnow for purposes of Rule 145 under the Securities Act, the Shareholder shall deliver to Time Warner and Sony at least 30 days prior to the Closing a written agreement substantially in the form attached as Exhibit R to the Merger Agreement.

Covenants of Each Shareholder. Each Shareholder, solely in such Shareholder’s capacity as the record holder and beneficial owner of such Shareholder’s Subject Shares (and not being bound in any respect hereby in such person’s capacity as a director or officer of the Company) severally and not jointly, covenants and agrees as follows: (1) At any meeting of the shareholders of CDnow the Company called to seek the CDnow Company Shareholder Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Exchange Agreement, the Exchange or any other Transaction Agreement or any Transaction is sought, the Shareholder shall, including by executing a written consent solicitation if requested by Time Warner and Sony, shall vote (or cause to be voted) the Subject Shares of the Shareholder in favor of granting the CDnow Company Shareholder Approval. (2) IRREVOCABLE PROXY The Shareholder hereby irrevocably grants to, and appoints Time Warner or Sonyappoints, or any of them, Parent and any individual designated in writing by any of them, and each of them individuallyParent, as the Shareholder's ’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Shareholder, to vote the Subject Shares of the Shareholder, or grant a consent or approval in respect of the Subject Shares of the Shareholder in a manner consistent with this Section 3. The Shareholder understands and acknowledges that Time Warner and Sony are Parent is entering into the Merger Exchange Agreement in reliance upon the Shareholder's ’s execution and delivery of this Agreement. The Shareholder hereby affirms that the irrevocable proxy set forth in this Section 3(a) is given in connection with the execution agreement of Parent to purchase the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties Subject Shares of the Shareholder under this Agreementpursuant to the Offer. 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 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 1759 of the PBCL. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of Sections 3(a) and 3(b). (b) At any meeting of shareholders of CDnow or at any adjournment thereof or in any other circumstances upon which the Shareholder's vote, consent or other approval is sought, the Shareholder shall vote (or cause to be voted) the Subject Shares of the Shareholder against (i) any Acquisition Agreement, merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by CDnow (other than the Merger Agreement and the Transactions), (ii) any CDnow Takeover Proposal and (iii) any amendment of the CDnow Charter or the CDnow Bylaws or other proposal or transaction involving CDnow or any CDnow Subsidiary, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify any provision of the Merger Agreement, any other Transaction Agreement, any Transaction or change in any manner the voting rights of any class of CDnow Capital Stock. The Shareholder shall not commit or agree to take any action inconsistent with the foregoing. (c) Other than this Agreement, the Shareholder shall not (i) except as set forth on Schedule A attached hereto, sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares to any person other than pursuant to the Transactions or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares and shall not commit or agree to take any of the foregoing actions; provided, however, that, at any time that is not more than three days prior to the date on which such tender offer expires, the Shareholder may Transfer the Subject Shares pursuant to any tender offer solely involving cash consideration and constituting a Superior CDnow Proposal (it being understood that any voting rights with respect to such Transferred Subject Shares shall also be transferred). (d) The Shareholder shall not, nor shall it authorize or permit any employee of, or any investment banker, financial advisor, attorney, accountant or other advisor or representative retained by, the Shareholder to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any action designed to facilitate, any inquiries or the making of a proposal which constitutes, or may reasonably be expected to lead to, any CDnow Takeover Proposal, (ii) participate in any discussions or negotiations regarding any CDnow Takeover Proposal or (iii) enter into any agreement with respect to any CDnow Takeover Proposal; provided, however, that the Shareholder may participate in discussions or negotiations with any person regarding a Superior CDnow Proposal if at such time CDnow is permitted to engage in, and is actually engaged in, discussions or negotiations with such person pursuant to Section 7.02(a) of the Merger Agreement. The Shareholder promptly shall advise Time Warner and Sony orally and in writing of any request for information or of any CDnow Takeover Proposal, or any inquiry made to the Shareholder with respect to or that could lead to any CDnow Takeover Proposal, the material terms and conditions of such request, CDnow Takeover Proposal or inquiry and the identity of the person making any such request, CDnow Takeover Proposal or inquiry. The Shareholder will keep Time Warner, Sony and CDnow informed of the status and details (including amendments and proposed amendments) of any such request, CDnow Takeover Proposal or inquiry. (e) The Shareholder 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 Transactions. The Shareholder shall not issue any press release or make any other public statement with respect to any Transaction Agreement or any Transaction without the prior consent of Time Warner and Sony, except as may be required by applicable Law. (f) The Shareholder hereby consents to and approves the actions taken by the CDnow Board in approving the Transaction Agreements and the Transactions. The Shareholder hereby waives, and agrees not to exercise or assert, any dissent rights under Subchapter D in connection with the Transactions. (g) If, at the time the Merger Agreement is submitted for approval to the shareholders of CDnow, the Shareholder is an "affiliate" of CDnow for purposes of Rule 145 under the Securities Act, the Shareholder shall deliver to Time Warner and Sony at least 30 days prior to the Closing a written agreement substantially in the form attached as Exhibit R to the Merger Agreement.Article 2.29