Covenants of Each Stockholder. Each Stockholder, severally and not jointly, agrees as follows: (a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement. (b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles of Incorporation or Bylaws or other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction. (c) Such Stockholder shall not (i) transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted. (d) Subject to Section 11, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request. (e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives. (f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger. (g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 3 contracts
Samples: Stockholder Agreement (Energizer Holdings Inc), Stockholder Agreement (Energizer Holdings Inc), Stockholder Agreement (Playtex Products Inc)
Covenants of Each Stockholder. Each Unless this Agreement is terminated in accordance with its terms, each Stockholder, severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon seek the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, Company Shareholder Approval or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Reorganization Agreement, the Reincorporation Merger, the Share Exchange or the Plan of Merger or any of the other transactions contemplated by the Merger Agreement is sought, such the Stockholder shall shall, including by executing a written consent solicitation if requested by the Company, cause its shares to be present in person or by proxy for purposes of constituting a quorum and vote (or cause to be voted) all the Subject Shares of such the Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) of granting the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger AgreementCompany Shareholder Approval.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder’s vote, consent, adoption consent or other approval (including by written consent solicitationconsent) is sought, such the Stockholder shall cause its shares to be present in person or by proxy for purposes of constituting a quorum and vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, merger or other Acquisition Company Takeover Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles of Incorporation Company Charter or the Company Bylaws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany Subsidiary, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede or delay the consummation nullify any provision of the Reorganization Agreement, the Plan of Merger, the Reincorporation Merger or the other transactions contemplated by Share Exchange. The Stockholder shall not commit or agree to take any action inconsistent with the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transactionforegoing.
(c) Such Other than this Agreement, the Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit-sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of of, any Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement or the Merger AgreementTransactions, unless prior to any such Transfer the transferee of such Stockholder’s Subject Shares is a party to this Agreement, enters into a Stockholder voting agreement with Parent the Company on terms substantially identical to the terms of this Agreement or agrees to become a party to this Agreement pursuant to a customary joinder agreement, or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant Shares and shall not commit or agree to this Agreement. Nothing contained herein will be deemed to restrict take any of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject to Section 11, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such The Stockholder shall use all its reasonable 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 Parent the other parties hereto in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Reorganization Agreement, the Plan of Merger, the Reincorporation Merger and the Share Exchange.
(e) The Stockholder hereby consents to and approves the actions taken by the Company Board in approving the Reorganization Agreement, the Plan of Merger, the Reincorporation Merger and the Share Exchange.
Appears in 3 contracts
Samples: Voting Agreement (Brookfield Renewable Partners L.P.), Voting Agreement (TerraForm Power, Inc.), Voting Agreement (TerraForm Power, Inc.)
Covenants of Each Stockholder. Each Stockholder, Stockholder jointly and severally covenants and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any postponement or adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall (i) appear at such meeting or otherwise cause its Subject Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted) all the of such Stockholder’s Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At Prior to the date that is the later of (x) the date of the meeting of the stockholders of the Company called to vote upon the Merger Agreement and (y) six months from the date of this Agreement, at any meeting of the stockholders of the Company or at any postponement or adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the of such Stockholder’s Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not (and shall not commit or agree to) consent to (and shall or cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): : (i) any merger agreement, merger Takeover Proposal or other any Acquisition Proposal (other than the Merger Agreement and the Merger), relating thereto or (ii) any amendment of the Company’s Articles of Incorporation Company Certificate or the Company Bylaws (other than pursuant to or as contemplated by the Merger Agreement) or any other proposal, action action, agreement or transaction involving which, in the Company or any case of its Subsidiaries or any of its stockholdersthis clause (ii), which amendment or other proposal, action or transaction could reasonably be expected to prevent (A) result in a breach of any covenant, agreement, obligation, representation or impede warranty of the Company contained in the Merger Agreement or delay of the Stockholders contained in this Agreement, (B) prevent, impede, interfere or be inconsistent with, delay, discourage or adversely affect the timely consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to Agreement, (C) dilute in any material respect the benefits to Parent or Sub of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, Agreement or (D) change in any manner the voting rights of the Company Common Stock (the matters described in clauses (i) and (ii), collectively, the “Frustrating TransactionsVote-Down Matters”) or that would otherwise facilitate a Frustrating Transaction).
(c) Such Stockholder shall not, and shall not commit or agree to, (i) sell, transfer, pledge, exchange, assign, tender or otherwise dispose of (including by gift, merger or otherwise by operation of law) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares (or any interest therein) or any rights to acquire any securities or equity interests of the Company, or enter into any Contract, option option, call or other arrangement with respect to the Transfer (including any profit profit-sharing or other derivative arrangement) of any Subject Shares (or any interest therein) or any rights to acquire any securities or equity interests of the Company, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Stockholder’s Subject Shares is a party to this Agreement, enters into a Stockholder stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or agrees to become a party to this Agreement pursuant to a joinder agreement satisfactory to Parent, or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject SharesShares or rights to acquire any securities or equity interests of the Company, other than pursuant to this Agreement. Nothing Each certificate or other instrument representing any Subject Shares shall bear a legend that such Subject Shares are subject to the provisions of this Agreement, including this Section 3(c); provided, however, that nothing contained herein will be deemed to shall restrict the ability of any such Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedOptions.
(d) Subject to Section 11, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and commit or agree to take any action inconsistent with or challenging the transactions contemplated by, or the terms of, this Agreement or the Merger Agreement. Such Stockholder hereby waives any rights of appraisal, or rights to dissent from the Merger, that such Stockholder may have.
(ii) Such Stockholder shall not permit any of its Stockholder Representatives tonot, directly or indirectly, issue any press release with respect to the Merger Agreement, this Agreement, the Merger or make any of the other transactions contemplated by the Merger Agreement or by this Agreement without the prior written consent of Parent, except as may be required by applicable Law or court process.
(iii) Such Stockholder shall use commercially reasonable efforts to consult with Parent prior to making any public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representativesAgreement.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 2 contracts
Samples: Stockholder Agreement (International Business Machines Corp), Stockholders Agreement (Unica Corp)
Covenants of Each Stockholder. Each StockholderUntil the termination of this Agreement in accordance with Section 7, each Stockholder severally and not jointly, jointly agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the its Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) of the adoption by the Company of the Merger Agreement (as it may be amended from time to time, provided that such amendment is not adverse to such Stockholder) and the approval of, of the Merger terms thereof and each of the other transactions contemplated by thereby. Any vote cast in accordance with this Section 3(a) or in accordance with Section 3(b) shall be cast in such manner as will ensure that such vote is duly counted for purposes of determining whether a quorum is present and for purposes of determining the Merger Agreement and (ii) any other matter intended to facilitate the consummation result of the transactions contemplated by the Merger Agreementsuch vote.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a such Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the its Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), against any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action which transaction or transaction involving amendment or other proposal would be reasonably likely to impede, frustrate, prevent or nullify the Company Merger or the Merger Agreement (as it may be amended from time to time, provided such amendment is not adverse to such Stockholder), or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating TransactionShares. Such Stockholder further agrees not to enter into any agreement inconsistent with the foregoing.
(c) Such Stockholder shall not not, prior to the earliest of (i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its terms, (x) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contractcontract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any or all of such Stockholder's Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement therein or (iiy) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, with any Acquisition Proposal and agrees not to commit or Frustrating Transaction with respect agree to take any Subject Shares, of the foregoing actions other than Transfers to its Affiliates provided that such transferee agrees to be bound by the terms hereof, and Transfers pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedSection 3(d).
(d) Subject to Section 11In the event that Parent, such Stockholder shall notPurchaser, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate affiliate thereof conducts a tender offer in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations accordance with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by validly tender such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Stockholder's Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestnot withdraw Subject Shares so tendered.
(e) Such Stockholder shall not and shall not permit any Until after the earlier to occur of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger being consummated or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parentbeing terminated, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual such Stockholder, any investment bankersolely in its capacity as stockholder, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the MergerMerger and the other transactions contemplated by the Merger Agreement (as it may be amended from time to time, provided such amendment is not adverse to such Stockholder).
(f) Such Stockholder, solely in its capacity as stockholder, shall not take any action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stockholders Agreement (Winokur Herbert S Jr), Stockholders Agreement (Demeter Holdings Corp)
Covenants of Each Stockholder. Each StockholderUntil the termination of this Agreement in accordance with Section 7, each Stockholder severally and not jointly, jointly agrees as follows:
(a) At any meeting of the stockholders Stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.by
(b) At any meeting of the stockholders Stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, merger or other Acquisition Proposal (other than as such term is defined in Section 6.8(a) of the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating TransactionStock. The Stockholder further agrees not to enter into any agreement inconsistent with the foregoing.
(c) Such The Stockholder shall not not, prior to the earliest of (i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its terms, (x) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any or all of such Subject Shares or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement the terms of the Offer or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (iiy) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal and agrees not to commit or Frustrating Transaction with respect agree to take any Subject Sharesof the foregoing actions. Notwithstanding the foregoing, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of at any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner time prior to the extent otherwise permitted under expiration of the terms Offer, Mr. Rod Xxxxxxxxx xxx Transfer up to 300,000 Subject Shares by gift, subject to the approval of such Company Stock Option or the plans under which they were grantedParent.
(d) Subject to the terms of Section 119, such during the term of this Agreement, the Stockholder shall not, and nor shall cause it permit any of its investment banker, financial advisor, attorney or accountant retained by, or other advisor or representative of, such Stockholder Representatives (as defined below) not to, directly or indirectly, indirectly (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.action
Appears in 2 contracts
Samples: Stockholders Agreement (C Ats Software Inc), Stockholders Agreement (Misys PLC)
Covenants of Each Stockholder. Each Stockholder, severally Stockholder covenants and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment or postponement thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger AgreementMerger.
(b) At any meeting of the stockholders of the Company Company, or at any adjournment thereof or postponement thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger Company Takeover Proposal or other Acquisition any transaction or occurrence that if proposed and offered to the Company or its stockholders (or any of them) would constitute a Company Takeover Proposal (other than the Merger Agreement and the Merger)collectively, "Alternative Transactions") or (ii) any amendment of the Company’s Articles Company Certificate or the by-laws of Incorporation the Company or Bylaws or any other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or materially impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or this Agreement or to deprive Parent of any material portion of the benefits to be received from the consummation of the transactions contemplated by this Agreement Merger or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock or any other capital stock or voting interests or securities of the Company (collectively, “"Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction").
(c) Such Other than pursuant to the Merger Agreement or this Agreement, such Stockholder shall not (i) sell, transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares of such Stockholder or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including of, or the creation or offer of any profit sharing or other derivative arrangement) of security in respect of, any Subject Shares of such Stockholder (or any interest therein), to or with any Person person other than pursuant than, in the case of the Primary Stockholder to Citigroup Inc. or any of its direct or indirect subsidiaries which shall have agreed to be bound by this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into as a Stockholder by a written agreement with reasonably satisfactory to Parent on terms substantially identical that has been delivered to the terms of this Agreement Parent, or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject SharesShares of such Stockholder, other than pursuant and shall not commit or agree to this Agreementtake any of the foregoing actions. Nothing contained herein will be deemed to restrict the ability Such Stockholder shall not, nor shall such Stockholder permit any entity under such Stockholder's control to, deposit any Subject Shares of any such Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedvoting trust.
(d) Subject to Section 11, such Such Stockholder shall not, and nor shall cause such Stockholder permit any of its Subsidiaries to, nor shall it authorize or permit any director, officer or employee of such Stockholder Representatives (as defined below) not or any of its Subsidiaries or any Representative of such Stockholder or any of its Subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate facilitate, any Alternative Transaction or encourage the submission of any Acquisition ProposalFrustrating Transaction, (ii) enter into any agreement with respect to any Alternative Transaction or Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, or knowingly assist, assist or participate in, facilitate or encourage in any effort or attempt by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives person with respect to, immediately cease any and all existing activities, discussions Alternative Transaction or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestFrustrating Transaction.
(e) Such Stockholder shall not use 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 transactions contemplated by this Agreement. Such Stockholder shall not commit or agree to take any action inconsistent with the transactions contemplated by this Agreement.
(f) Such Stockholder shall not, nor shall such Stockholder permit any of its Subsidiaries to, nor shall it authorize or permit any director, officer or employee of such Stockholder Representatives or any of its Subsidiaries or any Representative of such Stockholder or any of its Subsidiaries to, directly or indirectly, issue any press release or make any other public statement or announcement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement Agreement, without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Notwithstanding anything to the contrary contained herein, nothing in this Section 3 shall prohibit any Stockholder shall use all reasonable efforts to takefrom, or cause to be takenin his capacity as an officer and/or director of the Company, all taking any actions, and on behalf of the Company, that the Board of Directors of the Company is permitted to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in take under Section 4.02 of the most expeditious manner practicable, the MergerMerger Agreement.
Appears in 2 contracts
Samples: Voting Agreement (Citigroup Inc), Voting Agreement (Chase Industries Inc)
Covenants of Each Stockholder. Each Stockholder, acting as a stockholder of the Company and not as an officer or director of the Company, severally and not jointly, agrees as follows:
(a) At Without in any way limiting each Stockholder’s right to vote its Subject Shares in its sole discretion with respect to any other matters, at any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall shall, including by executing a written consent if requested by Parent, vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder’s vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, business combination, recapitalization, liquidation, dissolution, joint venture, binding share exchange, sale of substantial assets reorganization, or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company’s Articles of Incorporation Company Certificate or Bylaws Amended and Restated By-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede nullify, or delay the consummation result in a breach of any covenant, representation or warranty or any other obligation of the Company under or with respect to, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) Stock. The Stockholder shall not commit or that would otherwise facilitate a Frustrating Transactionagree to take any action inconsistent with the foregoing.
(c) Such The Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of of, any Subject Shares (or any interest therein, ) to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, Shares other than pursuant to this AgreementAgreement and shall not commit or agree to take any of the foregoing actions. The Stockholder shall not, nor shall such Stockholder permit any entity under such Stockholder’s control to, deposit any Subject Shares in a voting trust. Nothing contained herein will in this Section 3(c) shall prohibit any sale, transfer or assignment of Subject Shares by a Stockholder that is a natural person to members of such Stockholder’s family, a family trust of such Stockholder or a charitable institution if the transferee of such Subject Shares agrees in writing to be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under bound by the terms hereof and notice of such Company Stock Option sale, transfer or assignment, including the plans under which they were grantedname and address of the purchaser, transferee or assignee, is delivered to Parent prior to such sale, transfer or assignment.
(d) Subject to Section 11, such The Stockholder shall not, and nor shall cause it authorize or permit (to the extent that it has the power not to permit) any of its employees or Affiliates of, or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative of, the Stockholder Representatives (as defined belowcollectively, the “Stockholder Representatives”) not to, directly or indirectlyindirectly through any person or entity, (i) solicit, initiate or encourage, or take any other action to facilitate designed to, or encourage which would reasonably be expected to, facilitate, any inquiries or the submission making of any Acquisition Proposal, proposal that constitutes or would reasonably be expected to lead to a Takeover Proposal or (ii) enter into into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating with respect to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a any Stockholder Representative of such Stockholder shall be a breach of this Section 3(d) by such Stockholder. Upon execution The Stockholder shall promptly advise Parent orally and in writing of this Agreement, such any Takeover Proposal or inquiry made to the Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Takeover Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any Until the earlier of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative the consummation of such Stockholder the Merger and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 termination of the Delaware Law or other applicable law in connection with Merger Agreement pursuant to its terms, the Merger.
(g) Such Stockholder shall use all its reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any other transaction contemplated by this Agreement or the Merger Agreement without the prior written consent of Parent, except as may be required by applicable law.
(f) The Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement. Each such beneficiary hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
(g) The Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement and this Agreement, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights under Section 262 of the DGCL or other applicable law in connection with the Merger.
Appears in 2 contracts
Samples: Stockholder Agreement (Closure Medical Corp), Stockholder Agreement (Closure Medical Corp)
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 10, each Stockholder, severally and not jointly, agrees as follows:
(a) In connection with the closing of the purchase and sale contemplated under Section 2 of this Agreement (other than pursuant to the Offer), each Stockholder agrees to deliver, either to Sub or as directed by Parent, all certificates evidencing the Subject Shares held by such Stockholder, duly endorsed in blank for transfer, or accompanied by stock powers and such other documents as may be necessary in Parent's judgment to transfer record ownership of the Subject Shares to Sub or as directed by Parent.
(b) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(bc) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): each class thereof) against (i) any merger agreement, merger or other Acquisition Proposal (other than Alternative Transaction as such term is defined in Section 6.2 of the Merger Agreement and the Merger)Agreement, or (ii) any amendment of the Company’s Articles 's articles of Incorporation organization or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of any class of Company Common Stock, or (iii) any action that would cause the Company Common Stock (collectivelyto breach any representation, “Frustrating Transactions”) warranty or that would otherwise facilitate a Frustrating Transactioncovenant contained in the Merger Agreement. Subject to Section 12, the Stockholder further agrees not to enter into any agreement or take any action inconsistent with the foregoing.
(cd) Such The Stockholder shall not not, prior to the earliest of (i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its terms, (A) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any or all of such Subject Shares or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement the terms of the Offer or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (iiB) enter into any voting arrangement, directly or indirectly, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any of the Subject Shares, other than pursuant and the Stockholder agrees not to this Agreement. Nothing contained herein will be deemed commit or agree to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestforegoing actions.
(e) Such Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not and shall not permit take any of its Stockholder Representatives to, directly action to revoke or indirectly, issue any press release terminate such trust or make take any other public statement with respect to the Merger Agreementaction which would restrict, this Agreement, the Merger limit or frustrate in any of the other transactions contemplated by the Merger Agreement or any of way the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable lawAgreement. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant Each such beneficiary hereby acknowledges and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and bound by the terms of this Agreement applicable to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Mergerit.
Appears in 2 contracts
Samples: Stockholder Agreement (Endogen Inc), Stockholder Agreement (Ewok Acquisition Corp)
Covenants of Each Stockholder. Each StockholderStockholder severally covenants and agrees, severally and not jointlyduring the term of this Agreement, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any postponement or adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall (i) appear at such meeting or otherwise cause its Subject Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted) all the of such Stockholder’s Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement; provided, that in each case, the Merger Agreement and shall not have been amended or modified without such Stockholder’s consent (ii1) any other matter intended to facilitate decrease the consummation Merger Consideration, (2) to change the form of Merger Consideration or (3) otherwise in a manner adverse to such Stockholder. Such Stockholder shall be free to vote (or cause to be voted) all of its remaining shares of Company Common Stock in excess of the transactions contemplated by the Merger AgreementSubject Shares as it determines in its sole discretion.
(b) At any meeting of the stockholders of the Company or at any postponement or adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the of such Stockholder’s Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not (and shall not commit or agree to) consent to (and shall or cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): : (i) any merger agreement, merger Company Takeover Proposal or other any Acquisition Agreement constituting or relating to any Company Takeover Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles of Incorporation Company Charter or the Company Bylaws (other than pursuant to and as permitted by the Merger Agreement) or any other proposal, action action, agreement or transaction involving which, in the case of this clause (ii), would (A) result in a breach of any covenant, agreement, obligation, representation or warranty of the Company contained in the Merger Agreement or any of its Subsidiaries the Stockholders contained in this Agreement, (B) prevent, impede, interfere or any of its stockholdersbe inconsistent with, which amendment delay, discourage or other proposal, action or transaction could reasonably be expected to prevent or impede or delay adversely affect the timely consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or (C) change in any manner the voting rights of the Company Common Stock (the matters described in clauses (i) and (ii), collectively, the “Frustrating TransactionsVote-Down Matters”); provided, that in each case, the Merger Agreement shall not have been amended or modified without such Stockholder’s consent (1) to decrease the Merger Consideration, (2) to change the form of Merger Consideration or that would (3) otherwise facilitate in a Frustrating Transactionmanner adverse to such Stockholder.
(c) Such Stockholder With respect to the Stockholders, “Subject Shares” shall not mean, as of any date of determination, a number of shares of Company Common Stock in the aggregate equal to the lesser of (i) transfer, pledge, assign, tender or otherwise dispose 25% of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) total number of any Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee outstanding shares of Company Common Stock as of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder date and (ii) for any Stockholder that is not a natural person, any the number of shares of Company Common Stock held by the Stockholders as of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representativesdate.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 2 contracts
Samples: Voting Agreement (Cincinnati Bell Inc), Voting Agreement (Cincinnati Bell Inc)
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 5, each Stockholder, severally and not jointlyin its capacity as such, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, Stockholders’ Meeting or at any adjournment thereofadjournment, postponement or continuation thereof or in any other circumstances circumstance occurring prior to the Company Stockholders’ Meeting upon which a vote, consent, adoption stockholder vote or other stockholder approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such each Stockholder shall vote (or cause to be voted) all the Subject Shares of beneficially owned (as defined in Recital A above) by such Stockholder (owned of record or beneficiallyi) entitled to vote thereon in favor of, of the approval of the Merger and shall consent to (or cause to be consented to), (i) the approval and adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement Agreement; and (ii) except with the written consent of Parent and Merger Sub, against any other matter intended Company Acquisition Proposal. Any such vote shall be cast in accordance with such procedures relating thereto so as to facilitate ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the consummation results of such vote. Each Stockholder agrees not to enter into any agreement or commitment with any Person the effect of which would be inconsistent with or violative of the transactions contemplated by the Merger Agreementprovisions and agreements contained in this Section 3(a).
(b) At any meeting of the stockholders of the Company Each Stockholder agrees not to, directly or at any adjournment thereof or in any other circumstances upon which a voteindirectly, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreementsell, merger or other Acquisition Proposal (other than the Merger Agreement and the Merger)transfer, or (ii) any amendment of the Company’s Articles of Incorporation or Bylaws or other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) transfertender, pledge, assignencumber, tender assign or otherwise dispose of (including by gift) (collectively, a “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, ) or enter into any Contractagreement, option or other arrangement with respect to, or consent to a Transfer of, or reduce his, her or its risk in a Constructive Sale (as defined below) with respect to, any or all of the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest thereinShares, to any Person other than pursuant to this Agreement or in accordance with the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) grant any proxies (other than the Company proxy card in connection with the Company Stockholders’ Meeting if and to the extent such proxy is consistent with such Stockholder’s obligations under Section 3(a) hereof), deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any of the Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options Agreement or in a “net exercise” manner consistent with such Stockholder’s obligations under Section 3(a) hereof. Such Stockholder further agrees not to commit or “cashless exercise” manner agree to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, and shall cause take any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate the foregoing actions or take any action that would reasonably be expected to facilitate have the effect of preventing, impeding, interfering with or encourage adversely affecting its ability to perform its obligations under this Agreement. Notwithstanding the submission foregoing or anything to the contrary set forth in this Agreement, each Stockholder may Transfer any or all of any Acquisition Proposalthe Subject Shares (i) by will, or by operation of law, in which case this Agreement shall bind the transferee, or (ii) enter into in connection with estate and charitable planning purposes, including Transfers to relatives, trusts and charitable organizations or participate in any discussions by distribution to partners, members, stockholders or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation affiliates of the restrictions on Stockholder, so long as the transferee, prior to such Stockholder set forth in the preceding sentence by Transfer, executes a Stockholder Representative shall be a breach counterpart of this Section by Agreement (with such Stockholder. Upon execution of this Agreement, modifications as Parent may reasonably request solely to reflect such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable lawtransfer). As used herein, the term “Stockholder RepresentativeConstructive Sale” means (i) for shall mean a short sale with respect to any individual StockholderSubject Shares, entering into or acquiring an offsetting derivative contract with respect to any investment bankerSubject Shares, attorney, accountant, consultant and entering into or acquiring a futures or forward contract to deliver any Subject Shares or entering into any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representativesderivative transaction that has the effect of materially changing the economic benefits and risks of ownership.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 2 contracts
Samples: Voting Agreement (Heist Charles H), Voting Agreement (Ablest Inc)
Covenants of Each Stockholder. Each StockholderUntil the termination of this ----------------------------- Agreement in accordance with Section 7, each Stockholder severally and not jointly, jointly agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the its Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) of the adoption by the Company of the Merger Agreement (as it may be amended from time to time, provided that such amendment is not adverse to such Stockholder) and the approval of, of the Merger terms thereof and each of the other transactions contemplated by thereby. Any vote cast in accordance with this Section 3(a) or in accordance with Section 3(b) shall be cast in such manner as will ensure that such vote is duly counted for purposes of determining whether a quorum is present and for purposes of determining the Merger Agreement and (ii) any other matter intended to facilitate the consummation result of the transactions contemplated by the Merger Agreementsuch vote.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a such Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the its Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), against any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger or other - Acquisition Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles 's certificate of Incorporation -- incorporation or Bylaws by-laws or other proposal, action which transaction or transaction involving amendment or other proposal would be reasonably likely to impede, frustrate, prevent or nullify the Company Merger or the Merger Agreement (as it may be amended from time to time, provided such amendment is not adverse to such Stockholder), or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating TransactionShares. Such Stockholder further agrees not to enter into any agreement inconsistent with the foregoing.
(c) Such Stockholder shall not not, prior to the earliest of (i) the - Effective Time and (ii) the termination of the Merger Agreement in -- accordance with its terms, (x) sell, transfer, give, pledge, assign, tender assign or - otherwise dispose of (including by gift) (collectively, “"Transfer”"), or -------- consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contractcontract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any or all of such Stockholder's Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement therein or (iiy) enter into any - voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, with any Acquisition Proposal and agrees not to commit or Frustrating Transaction with respect agree to take any Subject Shares, of the foregoing actions other than Transfers to its Affiliates provided that such transferee agrees to be bound by the terms hereof, and Transfers pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedSection 3(d).
(d) Subject to Section 11In the event that Parent, such Stockholder shall notPurchaser, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate affiliate thereof conducts a tender offer in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations accordance with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by validly tender such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Stockholder's Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestnot withdraw Subject Shares so tendered.
(e) Such Stockholder shall not and shall not permit any Until after the earlier to occur of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger being consummated or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parentbeing terminated, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual such Stockholder, any investment bankersolely in its capacity as stockholder, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the MergerMerger and the other transactions contemplated by the Merger Agreement (as it may be amended from time to time, provided such amendment is not adverse to such Stockholder).
(f) Such Stockholder, solely in its capacity as stockholder, shall not take any action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stockholders Agreement (Prudential Mortgage Capital Co LLC), Stockholders Agreement (Prudential Mortgage Capital Co LLC)
Covenants of Each Stockholder. Each Stockholder, acting as a stockholder of the Company (or warrantholder of the Company with respect to Section 3(h)) and not as an officer or director of the Company, severally and not jointly, agrees as follows:
(a) At Without in any way limiting each Stockholder's right to vote its Subject Shares in its sole discretion with respect to any other matters, at any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall shall, including by executing a written consent if requested by Parent, vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company’s Articles 's Ninth Restated Certificate of Incorporation or Bylaws By-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede nullify, or delay the consummation result in a breach of any covenant, representation or warranty or any other obligation of the Company under or with respect to, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) Stock. The Stockholder shall not commit or that would otherwise facilitate a Frustrating Transactionagree to take any action inconsistent with the foregoing.
(c) Such The Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of of, any Subject Shares (or any interest therein, ) to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, Shares other than pursuant to this AgreementAgreement and shall not commit or agree to take any of the foregoing actions. The Stockholder shall not, nor shall such Stockholder permit any entity under such Stockholder's control to, deposit any Subject Shares in a voting trust. Nothing contained herein will be deemed to restrict the ability in this Section 3(c) shall prohibit any sale, transfer or assignment of any Subject Shares by a Management Stockholder to exercise any Company Stock Options members of such Management Stockholder's family, a family trust of such Management Stockholder or a charitable institution if the transferee of such Subject Shares agrees in a “net exercise” or “cashless exercise” manner writing to the extent otherwise permitted under be bound by the terms hereof and notice of such Company Stock Option sale, transfer or assignment, including the plans under which they were grantedname and address of the purchaser, transferee or assignee, is delivered to Parent prior to such sale, transfer or assignment.
(d) Subject to Section 11, such The Stockholder shall not, and nor shall cause it authorize or permit (to the extent that it has the power not to permit) any of its employees or Affiliates of, or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative of, the Stockholder Representatives (as defined belowcollectively, the "Stockholder Representatives") not to, directly or indirectlyindirectly through any person or entity, (i) solicit, initiate or encourage, or take any other action to facilitate designed to, or encourage which would reasonably be expected to, facilitate, any inquiries or the submission making of any Acquisition Proposal, proposal that constitutes or would reasonably be expected to lead to a Takeover Proposal or (ii) enter into into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating with respect to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a any Stockholder Representative of such Stockholder shall be a breach of this Section 3(d) by such Stockholder. Upon execution The Stockholder shall promptly advise Parent orally and in writing of this Agreement, such any Takeover Proposal or inquiry made to the Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Takeover Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any Until the earlier of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative the consummation of such Stockholder the Merger and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 termination of the Delaware Law or other applicable law in connection with Merger Agreement pursuant to its terms, the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any other transaction contemplated by this Agreement or the Merger Agreement without the prior written consent of Parent, except as may be required by Applicable Law.
(f) The Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement. Each such beneficiary hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
(g) The Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement and this Agreement, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights under Section 262 of the DGCL or other Applicable Law in connection with the Merger.
(h) As set forth on Schedule B attached hereto, each Stockholder who also holds Warrants exercisable for Company Common Stock (as set forth opposite his, her or its name on Schedule B attached hereto) hereby consents to the lump sum cash payment as specified in Section 5.04(b) of the Merger Agreement and the concurrent cancelation of such Warrants. The Stockholder does not own, of record or beneficially, any Warrants exercisable for Company Common Stock other than the Warrants set for opposite his, her or its name on Schedule B attached hereto.
Appears in 2 contracts
Samples: Stockholder Agreement (3 Dimensional Pharmaceuticals Inc), Stockholder Agreement (Johnson & Johnson)
Covenants of Each Stockholder. Each Unless this Agreement is terminated in accordance with its terms, each Stockholder, severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders shareholders of the Company called to vote upon seek the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, Required Shareholder Approval or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, Agreement or the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such the Stockholder shall shall, including by executing a written consent solicitation if requested by the Company, cause its Subject Shares to be present in person or by proxy for purposes of constituting a quorum and vote (or cause to be voted) all the Subject Shares of such the Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) of granting the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger AgreementRequired Shareholder Approval.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder’s vote, consent, adoption consent or other approval (including by written consent solicitationconsent) is sought, such the Stockholder shall cause its Subject Shares to be present in person or by proxy for purposes of constituting a quorum and vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, merger or other Acquisition Takeover Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles of Incorporation Company Charter or the Company Bylaws or other proposal, action proposal or transaction involving the Company or any Subsidiary of its Subsidiaries or any of its stockholdersthe Company, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede or delay the consummation nullify any provision of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of Merger. The Stockholder shall not commit or agree to take any action inconsistent with the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transactionforegoing.
(c) Such Other than this Agreement, the Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit-sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of of, any Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement or the Merger AgreementTransactions, unless prior to any such Transfer the transferee of such Stockholder’s Subject Shares is a party to this Agreement, enters into a Stockholder voting agreement with Parent the Company on terms substantially identical to the terms of this Agreement or agrees to become a party to this Agreement pursuant to a customary joinder agreement, or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, Shares and shall cause any of its Stockholder Representatives (as defined below) not to, directly commit or indirectly, (i) solicit, initiate or agree to take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestforegoing actions.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 2 contracts
Samples: Voting Agreement (American Equity Investment Life Holding Co), Voting Agreement (Brookfield Reinsurance Ltd.)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, only as to itself, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) of such stockholders with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At During the term of this Agreement, at any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) of such stockholders is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented toto in respect of the Subject Shares), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger or other Acquisition Takeover Proposal (other than as defined in Section 5.02(a) of the Merger Agreement and the MergerAgreement), or ; (ii) any amendment of the Company’s 's Articles of Incorporation or Bylaws Bylaws, except with the prior written consent of Parent as provided in, and in accordance with, Section 5.01(a) of the Merger Agreement; or (iii) any other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or materially impede or delay the consummation of the Merger or any of the other transactions contemplated by the Merger Agreement or the consummation of any of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “"Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction").
(c) Such During the term of this Agreement, such Stockholder shall not not: (i) sell, transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or or, except as may be required under the Pledge Agreements, consent to or permit any Transfer of, any Subject Shares of such Stockholder or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any such Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement ; or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Takeover Proposal (as defined in Section 5.02(a) of the Merger Agreement) or Frustrating Transaction with respect to any Subject SharesShares of such Stockholder, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) During the term of this Agreement, such Stockholder shall not request that the Company register the Transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of the Subject Shares of such Stockholder, other than, in the case of the Pledged Shares, as may be required under the Pledge Agreements, unless such Transfer is made in compliance with this Agreement (including the provisions of Sections 2(h) and 2(i)). The Company shall ensure that no Transfer in violation of this Agreement shall be made or recorded on the books of the Company and any such Transfer shall be void and of no force and effect.
(e) Subject to the following paragraph of this Section 112(e), such Stockholder shall not, and nor shall cause such Stockholder permit any of its Affiliates to, or authorize or permit any director, officer, employee, partner or agent of such Stockholder Representatives (as defined below) not or any of its Affiliates, or any investment banker, attorney or other advisor or representative of such Stockholder or any of its Affiliates to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate facilitate, any Takeover Proposal (as defined in Section 5.02(a) of the Merger Agreement) or encourage the submission of any Acquisition ProposalFrustrating Transaction, (ii) enter into any agreement with respect to any Takeover Proposal (as defined in Section 5.02(a) of the Merger Agreement) or Frustrating Transaction, or (iii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any Person any information relating to the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, or knowingly assist, assist or participate in, facilitate or encourage in any effort or attempt by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives Person with respect to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Takeover Proposal (as defined in Section 5.02(a) of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.or
Appears in 2 contracts
Samples: Stockholders Agreement (Westwood Corp/Nv/), Stockholders Agreement (L 3 Communications Corp)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting Each Stockholder covenants and agrees that as promptly as practicable following the execution and delivery of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is soughtby the parties thereto, such Stockholder shall vote (or cause to be voted) all the each record holder of such Stockholder's Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), :
(i) consent in writing to the adoption of the Merger Agreement and the approval of, of the Merger and each of the other transactions contemplated thereby, without a meeting, without prior notice and without a vote by executing a Principal Stockholder Consent in the Merger Agreement and form of Exhibit A hereto covering all such record holder's Subject Shares; and
(ii) any other matter intended deliver such Principal Stockholder Consent to facilitate the consummation of the transactions contemplated by the Merger AgreementSecretary.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitation) of stockholders is sought, such Stockholder shall vote direct the voting of (or cause to be voted) all the its Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, share exchange, sale of substantial assets, reorganization, recapitalization, joint venture dissolution, liquidation or winding up of or by the Company or any other business combination involving the Company, (ii) any Takeover Proposal and (iii) any amendment or other change of the Company’s Articles of Incorporation Company Certificate or Bylaws the Company By-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersSubsidiaries, which amendment or other proposal, action proposal or transaction in any manner could reasonably be expected to impede, frustrate, prevent or impede nullify any provision of this Agreement, the Merger Agreement, the Debt Offer Documents or delay the consummation of the Merger or the any other transactions contemplated by the Merger Agreement hereby or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, thereby or change in any manner the voting rights of the any class of Company Common Stock (collectivelyor Company Preferred Stock. Each Stockholder shall not, “Frustrating Transactions”) and shall not permit the record holder of any of its Subject Shares to, commit or that would otherwise facilitate a Frustrating Transactionagree to take any action inconsistent with the foregoing.
(c) Such Other than pursuant to the terms of this Agreement, each Stockholder shall not not, directly or indirectly, (i) other than pursuant to the Merger, sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by giftgift or by operation of law) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option Contract or other arrangement with respect to the Transfer (including of, or any profit sharing or other derivative arrangement) of arrangement relating to, any Subject Shares to or with any interest thereinperson, except an Affiliate of such Stockholder or the account or person for whom such Stockholder is acting on behalf of with respect to any Person other than pursuant such Subject Shares; provided that prior to such Transfer, or entering into such Contract or arrangement, such Affiliate, account or person (or such Stockholder acting on behalf of such Affiliate or person) shall become a party to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee in respect of such Subject Shares enters into pursuant to a Stockholder joinder agreement with satisfactory to Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxyproxy (or written consent in lieu thereof), voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject SharesShares and shall not commit or agree to take any of the foregoing actions. In furtherance of the foregoing, other than pursuant to each Stockholder agrees that any Transfer in violation of this Agreement. Nothing contained herein will Agreement shall be deemed to restrict the ability void and of any Stockholder to exercise any Company Stock Options in a “net exercise” no force or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedeffect.
(d) Subject to Section 11, such Each Stockholder shall not, and nor shall cause it authorize or permit any Representative of its such Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take encourage any action to facilitate inquires or encourage the submission making of any Acquisition Proposal, proposal that constitutes a Takeover Proposal or (ii) enter into into, continue or participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company in connection with, or any of its Subsidiaries to, otherwise cooperate in any way withway, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Each Stockholder shall, and it shall cause any each Representative of its such Stockholder Representatives to, immediately cease any and cause to be terminated all existing activities, discussions or negotiations with any parties person conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Takeover Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Each Stockholder shall use all commercially 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 Parent the other parties in doing, all things necessary, proper or advisable reasonably requested by Parent from such Stockholder to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated hereby and by the Merger Agreement as in effect on the date hereof. Each Stockholder shall not issue any press release or make any other public statement with respect to the Merger Agreement, the Merger or any other transactions contemplated hereby or by the Merger Agreement without the written consent of Parent (which consent shall not be unreasonably withheld or delayed), except as may be required by applicable Law or court process and after consultation with, and having provided an opportunity for review and comment on such press release or other public statement by Parent to the extent practicable.
(f) Each Stockholder hereby consents to and adopts and approves the actions taken by the Board of Directors of the Company in adopting, approving and declaring advisable this Agreement, the Merger Agreement, the Merger and the other transactions contemplated hereby or thereby. Each Stockholder hereby waives, and agrees, and shall cause the record holder of its Subject Shares to waive, and agree, not to exercise or assert, any appraisal rights under Section 262 in connection with the Merger.
Appears in 2 contracts
Samples: Principal Stockholders' Agreement (Jones Apparel Group Inc), Principal Stockholders' Agreement (Barneys New York Inc)
Covenants of Each Stockholder. Each From and after the date hereof and until the termination of this Agreement in accordance with Section 8, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger, the Merger Agreement, the Merger Asset Purchase or any of the other transactions contemplated by the Merger Agreement, Asset Purchase Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitation) with respect to the Merger, the Merger Agreement, the Merger Asset Purchase or any of the other transactions contemplated by the Merger Asset Purchase Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger and the Asset Purchase, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the Asset Purchase Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Asset Purchase Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of a material amount of assets (other than the Asset Purchase Agreement and the Asset Purchase), reorganization, recapitalization, dissolution, liquidation or winding-up of or by the Company or any other takeover proposal (collectively, "TAKEOVER PROPOSAL"), (ii) any action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement, the Asset Purchase Agreement or this Agreement or (iii) (x) any material amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws, (y) any change in a majority of the persons who constitute the Board of Directors of the Company or (z) any other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment is intended or other proposal, action or transaction could reasonably be expected to prevent impede, frustrate, prevent, delay or impede or delay nullify (A) the consummation ability of the Company to consummate the Merger or the other transactions contemplated by the Merger Agreement Asset Purchase or the consummation (B) any of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, the Asset Purchase Agreement or change in the Merger Agreement. The Stockholder further agrees not to commit or agree to take any manner action inconsistent with the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transactionforegoing.
(c) Such Stockholder shall Each Stockholder, severally and not jointly, agrees not to (i) offer to sell, sell, transfer, encumber, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “Transfer”"TRANSFER"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contractcontract, option or other arrangement with respect to or consent to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, therein to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of the Merger, (ii) except as contemplated hereby, grant any proxies or powers of attorney with respect to the Subject Shares, deposit any Subject Shares into a voting trust or enter into any voting arrangement with respect to the Subject Shares, or any interest in the foregoing, except with Parent or Sub, (iii) take any action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect or have the effect of preventing or disabling the Stockholder from performing such Stockholder's obligations under this Agreement or (iiiv) enter into commit or agree to take any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Each Stockholder hereby irrevocably waives any rights of appraisal or rights to dissent from the Merger that the Stockholder may have.
(e) Each Stockholder agrees with, and covenants to, Parent that the Stockholder shall not request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of the Subject Shares, unless such transfer is made in compliance with this Agreement. In the event of a stock dividend or distribution, or any change in the Common Stock by reason of any stock dividend or distribution, or any change in the Common Stock by reason of any stock dividend, split-up, recapitalization, combination, exchange of shares or the like, the term "Subject Shares" shall be deemed to Section 11refer to and include the Subject Shares as well as all such stock dividends and distributions and any shares into which or for which any or all of the Subject Shares may be changed or exchanged and the Purchase Price (as defined herein) shall be accordingly adjusted. Each Stockholder shall be entitled to receive any cash dividend paid by the Company during the term of this Agreement until the Subject Shares are cancelled in the Merger or purchased hereunder.
(f) Each Stockholder, severally and not jointly, shall not, nor shall it authorize or permit any partner, officer, director or employee of, or any investment banker, attorney or other advisor or representative of, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, Takeover Proposal or (ii) enter into or participate in any discussions discussions, conversations, negotiations or negotiations withother communications regarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way withway, assist or knowingly assist, participate in, facilitate or encourage any effort or attempt by any Third Party other person or entity, to seek to do any of the foregoing or take any other action to facilitate any inquiries or the making of any proposal that is seeking to makeconstitutes, or has madeis likely to lead to, an Acquisition any Takeover Proposal; provided, (iii) enter into any agreement in principlehowever, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting that the foregoing, it foregoing shall not restrict a Stockholder who is agreed that any violation also a director of the restrictions on Company from taking actions in such Stockholder set forth Stockholder's capacity as a director to the extent and in the preceding sentence circumstances permitted by a Stockholder Representative shall be a breach Section 4.02 of this Section by such the Merger Agreement. Each Stockholder. Upon execution of this Agreement, such Stockholder shallin its capacity as such, and it shall cause any of its Stockholder Representatives to, will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to takeTHE STOCKHOLDER HEREBY GRANTS TO, or cause to be takenAND APPOINTS SUB AND ANY DESIGNEE OF SUB, all actionsEACH OF THEM INDIVIDUALLY, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the MergerSTOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION OF THIS AGREEMENT) PROXY AND ATTORNEY-IN-FACT WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SUBJECT SHARES OF STOCKHOLDER AS INDICATED IN SECTION 3(A) AND 3(B) ABOVE. THE STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION OF THIS AGREEMENT) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY STOCKHOLDER WITH RESPECT TO SUCH STOCKHOLDER'S SUBJECT SHARES.
Appears in 2 contracts
Samples: Stockholders Agreement (Artistic Greetings Inc), Stockholders Agreement (Artistic Greetings Inc)
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 11, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders Stockholders of the Company called to vote upon the Siebel Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by Mergers and the Merger Agreement is sought, such each Stockholder shall vote (or cause to be voted) all the its Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) of the adoption by the Company of the Siebel Merger and the approval of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders Stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitation) of all or some of the Stockholders of the Company is sought, such each Stockholder shall vote (or cause to be voted) all the its Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Siebel Merger), consolidation, combination, sale or transfer of a material amount of assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any Acquisition Proposal, and (ii) any amendment of the Company’s Articles certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholderssubsidiaries, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner delay, impede, frustrate, prevent or impede or delay nullify the consummation of Siebel Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of Siebel Stock. Each Stockholder further agrees not to commit or agree to take any action inconsistent with the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transactionforegoing.
(c) Such Except as provided in Section 4(d), each Stockholder shall agrees not to, directly or indirectly, (i) transferTransfer or enter into any agreement, pledge, assign, tender option or otherwise dispose of other arrangement (including by giftany profit sharing arrangement) (collectively, “Transfer”), or consent with respect to or permit any the Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person Person, other than pursuant to this Agreement or in accordance with the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) grant any proxies, deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any the Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed Subject to restrict Section 4(d), each Stockholder further agrees not to commit or agree to take any of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject to Section 11Notwithstanding the foregoing, such each Stockholder shall not, and shall cause any have the right to Transfer its Subject Shares (i) in open market transactions in accordance with such Stockholder’s past practices over the 12 months prior to the date of its Stockholder Representatives this Agreement or (ii) to a Permitted Transferee (as defined belowin this Section 4(d)) not toof such Stockholder if and only if such Permitted Transferee shall have agreed in writing, directly or indirectlyin a manner acceptable in form and substance to Oracle, (ix) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating accept such Subject Shares subject to the Company or any terms and conditions of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort this Agreement and (y) to be bound by any Third Party this Agreement and to agree and acknowledge that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by Person shall constitute a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution for all purposes of this Agreement. “Permitted Transferee” means, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant toStockholder, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hoursA) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker(B) a spouse or lineal descendant (whether natural or adopted), attorneysibling, accountantparent, consultant and any other agentheir, advisor executor, administrator, testamentary trustee, lifetime trustee or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any legatee of such Stockholder’s Subsidiaries , (C) any charitable organization described in Section 170(c) of the Code, (D) any trust, the trustees of which include only the Persons named in clause (A) or (B) and the beneficiaries of which include only the Persons named in clause (A), (B) or (C), (E) any corporation, limited liability company or partnership, the stockholders, members or general or limited partners of its which include only the Persons named in clause (A) or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors(B), or other representatives.
(fF) Such if such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicableis a trust, the Mergerbeneficiary or beneficiaries authorized or entitled to receive distributions from such trust.
Appears in 2 contracts
Samples: Shareholder Agreement (Ozark Holding Inc.), Shareholder Agreement (Oracle Corp /De/)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any postponement or adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall (i) when a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present thereat for the purpose of establishing a quorum, and respond to each request by the Company or Parent for written consent, if any, and (ii) vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), the approval of (iA) the adoption of the Merger Agreement and the approval ofAgreement, the Merger and each of the other transactions contemplated by the Merger Agreement Agreement, in each case whether or not the Board of Directors of the Company recommends such approval, and (iiB) any other matter intended “golden parachute” compensation agreements and understandings subject to facilitate the consummation Section 14A(b)(1) of the transactions contemplated by the Merger AgreementSecurities Exchange Act of 1934.
(b) At any meeting of the stockholders of the Company or and at any postponement or adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall (i) when a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present thereat for the purpose of establishing a quorum, and respond to each request by the Company or Parent for written consent, if any, and (ii) vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (iA) any merger agreement, agreement or merger involving the Company or other Acquisition Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles of Incorporation or Bylaws or other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholdersStockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or impede or interfere or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or (B) any change in the Company’s present capitalization or dividend policy or any manner amendment or other change to the voting rights Company’s Certificate of Incorporation or Bylaws, or (C) any proposal for any recapitalization, reorganization, liquidation, dissolution, amalgamation, merger, sale of assets or other business combination between the Company and any other Person (other than the Merger), in each case whether or not the Board of Directors of the Company Common Stock recommends approval of such proposal, action or transaction (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction).
(c) Such Stockholder shall not (i) sell (constructively or otherwise), transfer, pledge, assign, hypothecate, grant, encumber, gift, tender into any tender or exchange offer or otherwise dispose of (including whether by giftsale, merger, consolidation, liquidation, dissolution, dividend, distribution or otherwise) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest beneficial ownership or voting power thereof or therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder voting agreement with Parent on terms substantially identical to the terms of this Agreement or Agreement, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing , or (iii) knowingly take any action that would make any representation or warranty of such Stockholder contained herein will be deemed untrue or have the effect of preventing or disabling such Stockholder from performing its obligations under this Agreement; provided, however, prior to restrict the ability consummation of any Stockholder to exercise any Company Stock Options the Merger, Xxxxx X. XxXxxxx may Transfer record ownership of the shares set forth on Schedule C hereto, in a “net exercise” or “cashless exercise” manner accordance with the transfer description set forth on Schedule C hereto, provided and only to the extent otherwise permitted under that Xxxxx X. XxXxxxx remains the beneficial owner of such shares following such Transfer. In the event of a Transfer in violation of this provision, such Stockholder shall instruct the Company that such Transfer shall be void. Such Stockholder understands and agrees that if such Stockholder attempts to Transfer, vote or provide any other person with the authority to vote any of the Subject Shares, other than in compliance with this Agreement, such Stockholder shall instruct the Company to not, (i) permit any such Transfer on its books and records, (ii) issue a new certificate representing any of the Subject Shares or (iii) record any such vote unless and until such Stockholder shall have complied with the terms of such Company Stock Option or the plans under which they were grantedthis Agreement.
(d) Subject Such Stockholder hereby consents to Section 11, such Stockholder shall not, and shall cause any approves the actions taken by the Board of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission Directors of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, approving the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally Agreement and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of and the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of ParentAgreement. The Stockholder hereby waives, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any appraisal, dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(e) In the event that a Stockholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional securities of the Company or other voting interests with respect to the Company, such securities or voting interests shall, without further action of the parties, be subject to the provisions of this Agreement, and the number and kind of Subject Shares held by such Stockholder set forth on Schedule A hereto will be deemed amended accordingly and such securities or voting interests shall automatically become subject to the terms of this Agreement. Such Stockholder shall promptly notify Parent and the Company of any such event.
(f) Prior to the Termination Date (as defined below), such Stockholder shall not, and shall not authorize or permit to the extent applicable any of its Subsidiaries or any of its or their respective directors, officers, employees, investment bankers, financial advisors, attorneys, accountants and other advisors, agents and representatives, directly or indirectly, to:
(i) solicit, initiate, endorse, encourage or facilitate any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal;
(ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information or data with respect to, or otherwise cooperate in any way with, any Acquisition Proposal;
(iii) execute or enter into any agreement constituting or relating to any Acquisition Proposal, or approve or recommend or propose to approve or recommend any Acquisition Proposal or any Contract constituting or relating to any Acquisition Proposal (or authorize, propose or agree to do any of the foregoing actions); or
(iv) make, or in any manner participate in, a “solicitation” (as such term is used in the rules of the SEC) of proxies or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of shares of capital stock of the Company intending to facilitate any Acquisition Proposal or cause stockholders of the Company not to vote to approve the Merger or any other transaction contemplated by the Merger Agreement.
(g) Such Stockholder shall use all reasonable efforts to take, or will immediately cease and cause to be taken, terminated all actions, and existing discussions or negotiations with any Person conducted heretofore with respect to do, or cause to be done, and to assist and cooperate with Parent any of the matters described in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the MergerSection 2(f) above.
Appears in 2 contracts
Samples: Voting Agreement (Labarge Inc), Voting Agreement (Ducommun Inc /De/)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, only as to itself, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger or other Acquisition Takeover Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles 's Amended and Restated Certificate of Incorporation or Bylaws Amended and Restated By-laws or other proposal, action or transaction involving the Company or any of its Subsidiaries subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or materially impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “"Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction").
(c) Such Stockholder shall not (i) prior to the Stockholders Meeting, sell, transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Takeover Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Such Stockholder shall not, and nor shall cause such Stockholder permit any of its subsidiaries to, or authorize or permit any director, officer, employee or partner of such Stockholder Representatives (as defined below) not or any of its subsidiaries, or any investment banker, attorney or other advisor or representative of such Stockholder or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate facilitate, any Takeover Proposal or encourage the submission of any Acquisition ProposalFrustrating Transaction, (ii) enter into any agreement with respect to any Takeover Proposal or Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, or knowingly assist, assist or participate in, facilitate or encourage in any effort or attempt by any Third Party person with respect to, any Takeover Proposal or Frustrating Transaction. Notwithstanding the foregoing and notwithstanding Section 3(e), nothing in this Agreement shall limit or restrict a Stockholder that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation a director of the restrictions on such Stockholder set forth in the preceding sentence by Company or limit or restrict a partner or an employee or agent of a Stockholder Representative shall be that is a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any director of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but from acting in no event later than 24 hours) after receipt by such Stockholder in his, his or her or its capacity as a member of the Board of Directors of the Company to the extent that such (or its Stockholder RepresentativeBoard of Directors is engaging in activities expressly and specifically permitted under the proviso to Section 4.02(a) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestMerger Agreement.
(ei) Such Stockholder shall use his or her or 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 transactions contemplated by this Agreement and the Merger Agreement. Such Stockholder shall not commit or agree to take any action inconsistent with the transactions contemplated by this Agreement or the transactions contemplated by the Merger Agreement.
(ii) Such Stockholder shall not, and such Stockholder shall not permit any of its subsidiaries to, or authorize or permit any director, officer, employee or partner of such Stockholder Representatives or any of its subsidiaries or any investment banker, attorney or other advisor or representative of such Stockholder or any of its subsidiaries to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not hereby waives any rights of appraisal, or rights to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with dissent from the Merger, that such Stockholder may have.
(g) Such (i) If (A) the Termination Fee becomes payable pursuant to Section 5.06(b) of the Merger Agreement and a Takeover Proposal is consummated or (B) a Takeover Proposal made by Parent (including any amendment of the Merger Agreement) which provides for Transaction Consideration in excess of $4.65 (the "Deal Price") per share is consummated (any Takeover Proposal referred to in clause (A) or (B) above is referred to herein as a "Transaction"), then such Stockholder shall use pay to Parent an amount in cash equal to such Stockholder's Profit; provided, however, that if all reasonable efforts or any part of the Transaction Consideration which such Stockholder is entitled to takereceive is not cash, or cause then such Stockholder's Profit shall be paid to Parent in each type of consideration paid to such Stockholder and in the same proportions as the types of consideration comprising the Transaction Consideration which such Stockholder is entitled to receive, in each case determined at the close of business on the date of the consummation of the Transaction, such that (A) in respect of Transaction Consideration to be takenpaid to such Stockholder in cash, all actions, and Parent shall be paid Profits by such Stockholder in cash in an amount equal to do, or cause the aggregate Transaction Consideration to be donepaid to such Stockholder in cash multiplied by a fraction (a) the numerator of which is equal to such Stockholder's Profit and (b) the denominator of which is equal to the aggregate Transaction Consideration to be received by such Stockholder (such fraction, and the "Profit Percentage"), (B) in respect of Transaction Consideration to assist and cooperate with be paid to such Stockholder in the form of securities, Parent in doingshall be paid Profits by such Stockholder, all things necessary, proper or advisable for each type of securities to consummate and make effectivebe so paid, in the most expeditious manner practicableform of that number of such securities that is equal to the total number of such securities to be paid to such Stockholder multiplied by the Profit Percentage, and (C) in respect of Transaction Consideration to be paid to such Stockholder in consideration of a type other than cash or securities, Parent shall be paid Profits by such Stockholder in the form of such type of consideration and in an amount equal to the aggregate fair market value of such consideration to be paid to Stockholder, with such fair market value determined as of the date of the consummation of the Transaction, multiplied by the Profit Percentage; provided, however, that all such determinations shall be made as of the close of business on the date of the consummation of the relevant Transaction without any regard to any events or circumstances occurring thereafter (such as changes in the trading price of any securities). Such Profits shall be paid to Parent, for each type of consideration, within five business days after the receipt by such Stockholder of such consideration. Any payment of Profit under this Section 3(g) shall (A) if paid in cash, be paid by wire transfer of same day funds to an account designated by Parent, and (B) if paid through the transfer of securities or other non-cash consideration, be paid through the delivery of such securities or other non-cash consideration, suitably endorsed or otherwise documented for transfer (if applicable), to Parent at its address set forth in Section 8.02 of the Merger Agreement.
(ii) The "Profit" of each Stockholder shall mean, as of the close of business on the date of consummation of a Transaction, the Mergeramount (if a positive number) equal to (A) the product of (1) the Transaction Consideration which such Stockholder is entitled to receive minus the Deal Price (as determined at such time) multiplied by (2) the number of Subject Shares held by such Stockholder on the date of this Agreement (other than any Subject Shares sold, transferred and delivered to Parent or its designee pursuant to Section 3(h) hereof), minus (B) any Profit Taxes.
Appears in 2 contracts
Samples: Stockholder Agreement (Crossworlds Software Inc), Stockholder Agreement (International Business Machines Corp)
Covenants of Each Stockholder. Each Stockholder, acting as a stockholder of the Company (or warrantholder of the Company with respect to Section 3(i)) and not as an officer or director of the Company, severally and not jointly, agrees as follows:
(a) At Without in any way limiting each Stockholder's right to vote its Subject Shares in its sole discretion with respect to any other matters, at any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall shall, including by executing a written consent if requested by Parent, vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company’s Articles 's Fourth Amended and Restated Certificate of Incorporation or Bylaws By-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede nullify, or delay the consummation result in a breach of any covenant, representation or warranty or any other obligation of the Company under or with respect to, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) Stock. The Stockholder shall not commit or that would otherwise facilitate a Frustrating Transactionagree to take any action inconsistent with the foregoing.
(c) Such The Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of of, any Subject Shares (or any interest therein, ) to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, Shares other than pursuant to this AgreementAgreement and shall not commit or agree to take any of the foregoing actions. Nothing contained herein will be deemed to restrict the ability of The Stockholder shall not, nor shall such Stockholder permit any Stockholder to exercise entity under such Stockholder's control to, deposit any Company Stock Options Subject Shares in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedvoting trust.
(d) Subject to Section 11, such The Stockholder shall not, and nor shall cause it authorize or permit any of its employees or Affiliates of, or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative of, the Stockholder Representatives (as defined belowcollectively, the "Stockholder Representatives") not to, directly or indirectlyindirectly through any person or entity, (i) solicit, initiate or encourage, or take any other action to facilitate designed to, or encourage which would reasonably be expected to, facilitate, any inquiries or the submission making of any Acquisition Proposal, proposal that constitutes or would reasonably be expected to lead to a Takeover Proposal or (ii) enter into into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating with respect to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a any Stockholder Representative of such Stockholder, whether or not such person is purporting to act on behalf of such Stockholder, shall be a breach of this Section 3(d) by such Stockholder. Upon execution The Stockholder shall promptly advise Parent orally and in writing of this Agreement, such any Takeover Proposal or inquiry made to the Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Takeover Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any Until the earlier of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative the consummation of such Stockholder the Merger and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 termination of the Delaware Law or other applicable law in connection with Merger Agreement pursuant to its terms, the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any other transaction contemplated by this Agreement or the Merger Agreement without the prior written consent of Parent, except as may be required by Applicable Law.
(f) The Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement. Each such beneficiary hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
(g) The Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement and this Agreement, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights under Section 262 of the DGCL or other Applicable Law in connection with the Merger.
(i) In the event that the Termination Fee shall become unconditionally payable pursuant to the terms of the Merger Agreement, each Stockholder shall pay to Parent an amount equal to fifty percent (50%) of all profit (determined in accordance with Section 3(h)(ii)) of such Stockholder, solely in his, her or its capacity as a stockholder of the Company, from the consummation of any Takeover Proposal (such amount to be payable immediately following the consummation of such Takeover Proposal).
(ii) For purposes of this Section 3(h), the profit of any Stockholder, solely in his, her or its capacity as a stockholder of the Company, from the consummation of any Takeover Proposal shall equal (A) the aggregate consideration received by such Stockholder, solely in his, her or its capacity as a stockholder of the Company, as a result of the consummation of such Takeover Proposal, valuing any non-cash consideration (including any residual interest in the Company) at its fair market value on the date of such consummation plus (B) the fair market value, on the date of sale or other disposition, of all Subject Shares of such Stockholder sold or otherwise disposed of after the termination of the Merger Agreement and prior to the date of such consummation less (C) the product of $7.41 and the number of Subject Shares owned by such Stockholder, which amount is payable to such Stockholder pursuant to the Merger Agreement, as in effect on the date hereof (the "Original Merger Consideration").
(iii) In the event that (A) prior to the Effective Time, a Takeover Proposal shall have been made to the Company or shall have been made directly to the stockholders of the Company generally or shall have otherwise become publicly known or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and (B) the Effective Time shall have occurred and Parent for any reason shall have increased the amount of the Original Merger Consideration, each Stockholder shall pay to Parent on demand an amount in cash equal to the product of (x) the number of Subject Shares of such Stockholder and (y) 50% of the excess, if any, of (I) the per share cash consideration or the per share fair market value of any non-cash consideration, as the case may be, received by the Stockholder as a result of the consummation of the Merger, pursuant to the Merger Agreement as in effect on the date of such consummation, determined as of the Effective Time of the Merger, over (II) the Original Merger Consideration.
(iv) For purposes of this Section 3(h), the fair market value of any non-cash consideration consisting of:
(A) securities listed on a national securities exchange or traded on The Nasdaq Stock Market shall be equal to the average closing price per share of such security as reported on such exchange or The Nasdaq Stock Market for the five trading days immediately preceding the date of determination; and
(B) consideration which is other than cash or securities of the form specified in clause (A) of this Section 3(h)(iv) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by Parent and the Stockholder owning the largest number of Subject Shares as set forth on Schedule A attached hereto within 10 business days prior to the event requiring the selection of such investment banking firm; provided, however, that if such parties are unable to agree within two business days prior to the date of such event as to the investment banking firm, then such parties shall each select one investment banking firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne equally by Parent, on the one hand, and the Stockholders, on the other hand. The determination of the investment banking firm shall be binding upon the parties.
(v) Any payments under this Section 3(h) shall be paid to Parent as designated by it with the same kind of consideration received by each Stockholder in the transaction giving rise to such payment obligation.
(i) As set forth on Schedule B attached hereto, each Stockholder who also holds Warrants exercisable for Company Common Stock (as set forth opposite his, her or its name on Schedule B attached hereto) hereby consents to the lump sum cash payment as specified in Section 5.04(b) of the Merger Agreement and the concurrent cancelation of such Warrants. The Stockholder does not own, of record or beneficially, any Warrants exercisable for Company Common Stock other than the Warrants set for opposite his, her or its name on Schedule B attached hereto.
Appears in 2 contracts
Samples: Stockholder Agreement (Orapharma Inc), Stockholder Agreement (Johnson & Johnson)
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 6, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Acquisition Proposal or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholderssubsidiaries, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the each class of Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating TransactionStock.
(c) Such The Stockholder shall agrees not to (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contractcontract, option or other arrangement with respect to the Transfer (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other derivative arrangement) disposition of (any such sale, transfer, pledge, assignment or disposition or entry into any such contract, option or other arrangement being collectively referred to as a "Disposition"), the Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement the Merger or other than as permitted as indicated on Schedule C or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedProposal.
(d) Until after the Merger is consummated or the Merger Agreement is terminated, the Stockholder (in his or her capacity as the beneficial owner of Subject to Section 11, such Stockholder Shares) shall not, and nor shall cause it permit any investment banker, attorney or other adviser or representative of its the Stockholder Representatives (as defined below) not to, directly or indirectly, (i) directly or indirectly solicit, initiate or take any action to facilitate or encourage the submission of of, any Acquisition Proposal, Proposal or (ii) enter into directly or indirectly participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, otherwise cooperate in or take any way withother action to facilitate any inquiries or the making of any proposal that constitutes, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking may reasonably be expected to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives lead to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to Until after the Merger Agreement, this Agreement, the Merger is consummated or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used hereinis terminated, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be donebedone, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the MergerMerger and the other transactions contemplated by the Merger Agreement.
(f) For a period of eighteen months following the Effective Time, each of Xxxxx Xxxx and Xxxxxxx Xxxx agrees not to Dispose of more than 25% of (x) any shares of Parent Common Stock received by such Stockholder in the Merger in exchange for the Subject Shares of such Stockholder or (y) following the Effective Time, any shares of Parent Common Stock received by such Stockholder upon the exercise of Company Stock Options assumed by Parent pursuant to the Merger Agreement.
Appears in 1 contract
Samples: Stockholder Agreement (CBS Corp)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, agrees The Stockholders agree as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and/or the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and/or the Merger Agreement is sought, such each Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated adoption by the Merger Agreement and (ii) any other matter intended to facilitate the consummation Company of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such each Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreementAlternative Transaction, merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to impede, frustrate, prevent or impede or delay nullify the consummation of the Merger or the other transactions contemplated by Merger, the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or change in any manner the voting rights of any class of the Company's capital stock, or (iii) any action that would cause the Company to breach any representation, warranty or covenant contained in the Merger Agreement. Each Stockholder further agrees not to enter into any agreement or take any action inconsistent with the foregoing. For purposes of this Agreement, "Alternative Transaction" means any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means following: (i) for the ----------------------- direct or indirect acquisition of all or any individual Stockholdermaterial part of the assets or properties of the Company, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for a merger, consolidation or other business combination directly or indirectly involving the Company, or (iii) the direct or indirect acquisition of any Stockholder that is not a natural personcapital stock, any of such Stockholder’s Subsidiaries or any of its or their officersoption, directorswarrant, employees, investment bankers, attorneys, accountants, consultants and other agents, advisorsright, or other representatives.
(f) Such Stockholder agrees not to exercise security convertible into or assertexercisable for capital stock, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the MergerCompany.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Samples: Stockholders' Agreement (Alliance Imaging Inc /De/)
Covenants of Each Stockholder. Each Stockholder, acting as a stockholder of the Company and not as an officer or director of the Company, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall shall, including by executing a written consent if requested by Parent, vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company’s Articles 's Restated Certificate of Incorporation or Bylaws Amended and Restated By-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede nullify, or delay the consummation result in a breach of any covenant, representation or warranty or any other obligation of the Company under or with respect to, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) Stock. The Stockholder shall not to commit or that would otherwise facilitate a Frustrating Transactionagree to take any action inconsistent with the foregoing.
(c) Such The Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of of, any Subject Shares (or any interest therein, ) to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject SharesShares and shall not to commit or agree to take any of the foregoing actions. The Stockholder shall not, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of nor shall such Stockholder permit any Stockholder to exercise entity under such Stockholder's control to, deposit any Company Stock Options Subject Shares in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedvoting trust.
(d) Subject to Section 11, such The Stockholder shall not, and nor shall cause it authorize or permit any of its employee or affiliate of, or any investment banker, financial advisor, attorney, accountant or other representative of, the Stockholder Representatives (as defined below) not to, directly or indirectlyindirectly through another person, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.or
Appears in 1 contract
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 8, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitation) with respect to the Merger and the Merger Agreement is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any each class thereof) in favor of the following (or any agreement to enter intoMerger, effect, facilitate or support any the adoption by the Company of the following): (i) any merger agreement, merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment approval of the Company’s Articles terms thereof and each of Incorporation or Bylaws or other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions Agreement.
(b) The Stockholder shall not, except as contemplated by this Agreement, directly or change in indirectly, grant any manner proxies or powers of attorney with respect to the Subject Shares, deposit the Subject Shares into a voting rights of trust or enter into a voting agreement with respect to the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating TransactionSubject Shares.
(c) Such Stockholder shall not (i) transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangementSection 12, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to during the term of this Agreement. Nothing contained herein will be deemed to restrict , the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, and nor shall cause it permit any director, officer, partner, employee or agent or any investment banker, attorney or other adviser or representative of its the Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of, any merger 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 the Company or any Acquisition other Takeover Proposal as such term is defined in Section 4.02(a) of the Merger Agreement (a "Competing Proposal, ") or (ii) enter into or participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, otherwise cooperate in or take any way withother action to facilitate any inquiries or the making of any proposal that constitutes, or knowingly assistmay reasonably be expected to lead to, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Competing Proposal. Without limiting the foregoing, it is agreed understood that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative an investment banker or attorney retained by, or other adviser or representative of, such Stockholder, whether or not such person is purporting to act on behalf of such Stockholder, shall be deemed to be a breach violation of this Section 3(c) by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(ed) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect Subject to the Merger Agreementterms of Section 12, this Agreement, until after the Merger is consummated or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used hereinis terminated, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the MergerMerger and the other transactions contemplated by the Merger Agreement; provided, however, that nothing in this paragraph 3(d) shall limit or affect any actions taken by a Stockholder in good faith in his or her capacity as an officer or director of the Company.
(e) If, at the time the Merger Agreement is submitted for approval to the stockholders of the Company, a Stockholder is an "affiliate" of the Company for purposes of Rule 145 under the Securities Act or for purposes of qualifying the Merger for pooling of interests accounting treatment under Opinion 16 of the Accounting Principles Board and applicable SEC rules and regulations, such Stockholder shall deliver to Parent on or prior to the Closing Date a written agreement substantially in the form attached as Exhibit A to the Merger Agreement.
(f) The Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement. Each such beneficiary hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(a1) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to vote upon seek the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, Stockholder Approval or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions transaction contemplated by the Merger Agreement is sought, such the Stockholder shall shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) all the Subject Shares of such the Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the of adoption of the Merger Agreement and the approval of, of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(2) The Stockholder hereby irrevocably grants to, and appoints, Parent and George E. Bushnell III, Philippe Germond and Gerard Ries, or any xx xxxx, xxx xxx xndividxxx xxxxxxxxxx xn wrixxxx xx xxx of them, and each of them individually, as the Stockholder's proxy and attorney-in- fact (with full power of substitution), for and in the name, place and stead of the Stockholder, to vote the Subject Shares of the Stockholder, or grant a consent or approval in respect of the Subject Shares of the Stockholder (i) in favor of adoption of the Merger Agreement and approval of the Merger and any other transactions contemplated by the Merger Agreement, (ii) against any Takeover Proposal and (iii) against any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, 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 contemplated by the Merger Agreement or change in any manner the voting rights of any class of capital stock of the Company. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a)(2) 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 Stockholder under this Agreement. The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the DGCL. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of Sections 3(a) and 3(b) in accordance with Section 4.
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval is sought (including by written consent solicitation) is soughtin the Stockholder's capacity as a stockholder of the Company), such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such the Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, merger or other Acquisition Takeover Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholderssubsidiaries, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede or delay the consummation nullify any provision of the Merger Agreement, the Merger or the any other transactions transaction contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of any class of capital stock of the Company Common Stock (collectively, “Frustrating Transactions”) Company. The Stockholder shall not commit or that would otherwise facilitate a Frustrating Transactionagree to take any action inconsistent with the foregoing.
(c) Such Other than pursuant to this Agreement, the Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of of, any Subject Shares (or any interest therein, options to acquire shares of Company Common Stock) to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant Shares and shall not commit or agree to this Agreement. Nothing contained herein will be deemed to restrict take any of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject to Section 11, such The Stockholder shall not, and nor shall cause it authorize or permit any of its employee or affiliate of, or any investment banker, financial advisor, attorney, accountant or other representative of, the Stockholder Representatives (as defined below) not to, directly or indirectlyindirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate intended to, or encourage which could reasonably be expected to, facilitate, any inquiries or the submission making of any Acquisition Proposalproposal that constitutes, or could reasonably be expected to lead to, any Takeover Proposal or (ii) enter into into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any information relating to the Company or person (other than Parent and any of its Subsidiaries affiliates and representatives) any information with respect to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such The Stockholder set forth in the preceding sentence by a Stockholder Representative promptly shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify advise Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify of any Takeover Proposal or inquiry made to the Third Party making, and the terms and conditions of, Stockholder with respect to or that could reasonably be expected to lead to any such Acquisition Takeover Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such The Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to the Merger Agreement, the Merger or any other transaction contemplated by the Merger Agreement without the prior written consent of Parent, except as may be required by Applicable Law.
(f) The Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement and this Agreement, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder hereby waives, and agrees not to exercise or assert, any appraisal rights under Section 262 in connection with the Merger.
(g) If, at the time the Merger Agreement is submitted for adoption by the stockholders of the Company, the Stockholder is an "affiliate" of the Company for purposes of Rule 145 under the Securities Act and has made or proposes to make a Share Election, the Stockholder shall deliver to Parent prior to the Closing a written agreement substantially in the form attached as Exhibit A to the Merger Agreement.
Appears in 1 contract
Samples: Stockholder Agreement (Vivendi)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, agrees agrees, subject to the terms and conditions of this Agreement, as follows:
(a) In connection with any closing of a purchase and sale pursuant to the exercise of an Option, each Stockholder agrees to deliver to the Escrow Agent promptly after receipt of a notice of exercise, all certificates evidencing the Subject Shares held by such Stockholder, duly endorsed in blank for transfer, or accompanied by stock powers and such other documents as may be necessary in the Investor's judgment to transfer record ownership of the Subject Shares being sold pursuant to such exercise to or as directed by the Investor.
(b) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficiallyexcept for the Series D Stock, unless it shall first have been converted into Common Stock) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated adoption by the Merger Agreement and (ii) any other matter intended to facilitate the consummation Company of the transactions contemplated by the Merger Agreement.
(bc) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficiallyexcept for the Series D Stock, unless it shall first have been converted into Common Stock) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, merger or other Acquisition Proposal (other than Alternative Transaction as such term is defined in Section 5.2 of the Merger Agreement and the Merger)Agreement, or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to impede, frustrate, prevent or impede or delay nullify the consummation of the Merger or the other transactions contemplated by Merger, the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or change in any manner the voting rights of the transactions contemplated by this Agreement without the prior written consent any class of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisorsCompany Common Stock, or other representatives.
(fiii) Such Stockholder agrees not any action that would cause the Company to exercise breach any representation, warranty or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.covenant
Appears in 1 contract
Samples: Stockholder Agreement (Ge Fund)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(a) At any meeting immediately following the execution and delivery of the stockholders of the Company called to vote upon the Merger this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such each Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and by delivering to the approval of, Company a Principal Stockholder Consent in the Merger and each form of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger AgreementExhibit A hereto.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder’s vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such the Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other business combination involving the Company, (ii) any Company Takeover Proposal and (iii) any amendment of the Company’s Articles of Incorporation Company Charter or the Company Bylaws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany Subsidiary, which amendment or other proposal, action proposal or transaction could in any manner is reasonably be expected likely to impede, frustrate, prevent or impede nullify any provision of the Merger Agreement, any other Transaction Agreement or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of any of the transactions contemplated by this Agreement hereby or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, thereby or change in any manner the voting rights of any class of Company Capital Stock. The Stockholder shall not commit or agree to take any action inconsistent with the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transactionforegoing.
(c) Such Other than pursuant to the terms of this Agreement, the Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including of, or any profit sharing or other derivative arrangement) of arrangement relating to, any Subject Shares to or with any interest therein, to any Person person other than pursuant to this the Merger Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement other Transaction Agreements or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant Shares and shall not commit or agree to this Agreement. Nothing contained herein will be deemed to restrict take any of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject to Section 11, such The Stockholder shall not, and nor shall cause it authorize or permit any Representative of its the Stockholder Representatives (as defined below) not to, directly or indirectly, (i) directly or indirectly solicit, initiate or take any action to facilitate or encourage the submission of of, any Acquisition Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, otherwise cooperate in or take any way withother action to facilitate any inquiries or the making of any proposal that constitutes, or knowingly assistmay reasonably be expected to lead to, any Company Takeover Proposal; provided, however, that the Stockholder may, and may authorize and permit any Representative of the Stockholder to, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties person regarding a Company Takeover Proposal if at such time (i) such Stockholder has been notified by the Company that the Company is permitted to engage in discussions or negotiations with such person regarding such Company Takeover Proposal in accordance with Section 5.02(a) of the Merger Agreement (“Permitted Discussions or Negotiations”), (ii) such Stockholder reasonably believes that the Company is permitted to engage in Permitted Discussions or Negotiations, and (iii) the Company is actually engaged in Permitted Discussions or Negotiations. The Stockholder shall, and shall cause each Representative of the Stockholder to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Company Takeover Proposal and request the prompt return or destruction of the foregoing. To the same extent required by the Company pursuant to, and subject all confidential information previously furnished to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her person or its capacity as such (or its Representatives. The Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice promptly shall be provided advise Parent orally and in writing and shall identify of any Company Takeover Proposal or inquiry with respect to or that could reasonably be expected to lead to any Company Takeover Proposal, the Third Party making, identity of the person making any such Company Takeover Proposal or inquiry and the material terms and conditions of, of any such Acquisition Proposal, indication Company Takeover Proposal or requestinquiry.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such The Stockholder shall use all its commercially 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 Parent the other parties in doing, all things necessary, proper or advisable reasonably requested by Parent from the Stockholder in its capacity as a stockholder of the Company to consummate and make effective, in the most expeditious manner reasonably practicable, the Merger and the other transactions contemplated hereby and by the other Transaction Agreements as in effect on the date hereof. The Stockholder shall not issue any press release or make any other public statement with respect to any Transaction Agreement, the Merger or any other transaction contemplated hereby or by the other Transaction Agreements without the prior consent of Parent, except as may be required by applicable Law or court process after consultation with, and having provided an opportunity for review and comment on such press release or other public statement by, the Company to the extent practicable.
(f) The Stockholder hereby consents to and approves the actions taken by the Company Board in approving the Transaction Agreements, the Merger and the other transactions contemplated hereby or thereby. The Stockholder hereby waives, and agrees not to exercise or assert, any appraisal rights under Section 262 in connection with the Merger.
Appears in 1 contract
Samples: Company Stockholders Agreement (Digitalnet Holdings Inc)
Covenants of Each Stockholder. Each StockholderStockholder hereby, severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, in each case after such time as Purchaser has purchased the Subject Shares of each Stockholder hereunder, and only if the record date for any such vote precedes the date of the sale of such Subject Shares to Purchaser, each Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder, including by executing a written consent solicitation if requested by Parent or Purchaser, in respect of which such Stockholder (owned of record then has or beneficially) entitled to vote thereon exercises voting control in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a votesuch Stockholder’s votes, consent, adoption consents or other approval (including by written consent solicitation) is approvals are sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned in respect of record which such Stockholder then has or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): exercises voting control against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, business combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company (in each case except as contemplated by the Merger Agreement, including by the Interim Business Plan) or any other Acquisition Proposal and (ii) any amendment of the Company’s Articles certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholderssubsidiaries, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to prevent impede, frustrate, prevent, delay or impede or delay nullify the consummation of Offer, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of any class of common stock or other voting securities of the Company Common Stock (collectively, “Frustrating Transactions”) Company. The Stockholder further agrees not to commit or that would otherwise facilitate a Frustrating Transactionagree to take any action or enter into any agreement inconsistent with the foregoing.
(c) Such Stockholder shall not (i) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any or all of the Subject Shares of such Stockholder or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, to any Person person other than Parent, Purchaser or another permitted purchaser pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this the Merger Agreement or otherwise to Purchaser in accordance with Sections 1 or 2 (other than any Transfer pursuant to the laws of descent or distribution) or (ii) enter into any other voting arrangement, whether by proxy, voting agreement agreement, voting trust, power-of-attorney or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any the Subject Shares, other than pursuant . Such Stockholder shall not commit or agree to this Agreement. Nothing contained herein will be deemed to restrict take any of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject Such Stockholder hereby consents to Section 11, such Stockholder shall not, and shall cause any approves the actions taken by the Board of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission Directors of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, approving the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of and the other transactions contemplated by the Merger Agreement for purposes of ensuring that any restrictions on business combinations set forth in the DGCL and applicable to the Company and/or in the Bylaws of the Company do not, and will not, apply to this Agreement, the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable lawthereby. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder hereby waives, and agrees not to exercise or assert, any dissenters’ or similar appraisal rights under Section 262 of the Delaware Law or other applicable law DGCL in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Samples: Shareholders Agreement (Cypress Communications Inc)
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 5, each Stockholder, severally and not jointlyin its capacity as such, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, Stockholders Meeting or at any adjournment thereofadjournment, postponement or continuation thereof or in any other circumstances occurring prior to the Company Stockholders Meeting upon which a vote, consent, adoption vote or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such each Stockholder shall vote (or cause to be voted) all the Subject Shares of (and each class thereof) held by such Stockholder (owned of record or beneficiallyi) entitled to vote thereon in favor of, of the approval of the Merger and shall consent to (or cause to be consented to), (i) the approval and adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement Agreement; and (ii) except with the written consent of Spinco, against any other matter intended Company Acquisition Proposal. Any such vote shall be cast in accordance with such procedures relating thereto so as to facilitate ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the consummation results of such vote. Each Stockholder agrees not to enter into any agreement or commitment with any person the effect of which would be inconsistent with or violative of the transactions contemplated by the Merger Agreementprovisions and agreements contained in this Section 3(a).
(b) At any meeting of the stockholders of the Company Each Stockholder agrees not to, directly or at any adjournment thereof or in any other circumstances upon which a voteindirectly, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreementsell, merger or other Acquisition Proposal (other than the Merger Agreement and the Merger)transfer, or (ii) any amendment of the Company’s Articles of Incorporation or Bylaws or other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) transfertender, pledge, assignencumber, tender assign or otherwise dispose of (including by gift) (collectively, a “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, ) or enter into any Contractagreement, option or other arrangement with respect to, or consent to a Transfer of, or convert or agree to convert, any or all of the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person person, other than pursuant to this Agreement or in accordance with the Merger Agreement, unless prior except in each case for Transfers to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical Stockholder’s affiliates as agree to the terms of this Agreement be bound hereby, or (ii) grant any proxies (other than the Company proxy card in connection with the Company Stockholders Meeting if and to the extent such proxy is consistent with the Stockholder’s obligations under Section 3(a) hereof), deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any of the Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed Such Stockholder further agrees not to restrict commit or agree to take any of the foregoing actions or take any action that would have the effect of preventing, impeding, interfering with or adversely affecting its ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted perform its obligations under the terms of such Company Stock Option or the plans under which they were grantedthis Agreement.
(dc) Subject Such Stockholder shall not, nor shall such Stockholder permit any controlled affiliate of such Stockholder to, nor shall such Stockholder act in concert with or permit any controlled affiliate to Section 11act in concert with any person to make, or in any manner participate in, directly or indirectly, a “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or powers of attorney or similar rights to vote, or seek to advise or influence any person with respect to the voting of, any shares of Common Stock intended to facilitate any Company Acquisition Proposal or to cause stockholders of the Company not to vote to approve and adopt the Merger Agreement. Such Stockholder shall not, and shall cause direct any investment banker, attorney, agent or other adviser or representative of its such Stockholder Representatives (as defined below) not to, directly or indirectly, (i) through any officer, director, agent or otherwise, enter into, solicit, initiate initiate, conduct or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in continue any discussions or negotiations with, furnish or knowingly encourage or respond to any inquiries or proposals by, or provide any information to, any person, other than Spinco, relating to the any Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting Each Stockholder hereby represents that, as of the foregoingdate hereof, it is agreed that any violation of the restrictions on such Stockholder set forth not engaged in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore party other than Spinco and AT Co. with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Samples: Voting Agreement (Alltel Corp)
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 8, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall shall, including by initiating a written consent solicitation if requested by Parent, vote (or cause to be voted) all the Subject his, her or its Non-Trust Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) or any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreementother Transaction Agreements.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject his, her or its Non-Trust Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholderssubsidiaries, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation any of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, Transaction Agreements or change in any manner the voting rights of the each class of Company Common Stock (collectivelyStock. Subject to Section 10, “Frustrating Transactions”) the Stockholder further agrees not to commit or that would otherwise facilitate a Frustrating Transactionagree to take any action inconsistent with the foregoing.
(c) Such The Stockholder shall agrees not to (i) transfersell, transfer (including by gift), pledge, assign, tender assign or otherwise dispose of or, in the case of any shares of Class B Common Stock, otherwise Transfer (including by giftwithin the meaning of paragraph (xii) of Division (C)(5) of Article IV of the Restated Certificate of Incorporation of the Company) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing of, his, her or other derivative arrangement) of any Subject its Non-Trust Shares or any interest therein, and/or Trust Shares to any Person person other than pursuant to this Agreement or the Merger Agreementterms of the Merger, unless prior such transferee agrees to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to be bound by the terms of this Agreement as if he, she or it had originally executed this Agreement as a Stockholder (any such person so agreeing to be bound, a "Transferee") and, in the case of shares of Class B Common Stock, only in a manner that would not cause such shares of Class B Common Stock to be converted into shares of Class A Common Stock (it being understood that no sale, transfer, pledge, assignment, disposition or Transfer that may occur as the result of the involuntary bankruptcy of the Stockholder will constitute a breach of this Agreement); provided, however, that not more than an aggregate of 603,993 shares of Class B Common Stock may be sold or transferred by all Stockholders collectively to one or more Transferees in a manner that would cause such shares of Class B Common Stock to be converted into shares of Class A Common Stock, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal Takeover Proposal, (iii) convert, or Frustrating Transaction cause to be converted, or take any action that would result in the conversion of, any of his, her or its Non-Trust Shares consisting of Class B Common Stock into shares of Class A Common Stock (except as permitted in subsection (i) above), (iv) transfer to the Trustees any Trust Certificates in connection with respect to the withdrawal of any Subject Shareshis, other than her or its Trust Shares from the Trust pursuant to this AgreementSection 4 of the Trust Agreement or otherwise or (v) execute any instrument directing the termination of the Trust pursuant to Section 20 of the Trust Agreement or otherwise. Nothing contained herein will be deemed Subject to restrict Section 10, the ability Stockholder further agrees not to commit or agree to take any of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject to Section 1110, such during the term of this Agreement, the Stockholder shall not, and nor shall cause it authorize any investment banker, attorney or other adviser or representative of its the Stockholder Representatives (as defined below) not to, directly or indirectly, (i) directly or indirectly solicit, initiate or take any action to facilitate or encourage the submission of of, any Acquisition Proposal, Takeover Proposal or (ii) enter into directly or indirectly participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, otherwise cooperate in or take any way withother action to facilitate any inquiries or the making of any proposal that constitutes, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking may reasonably be expected to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives lead to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Takeover Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to Until after the Merger Agreement, this Agreement, the Merger is consummated or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used hereinis terminated pursuant to its terms, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the MergerMerger and each of the other transactions contemplated by the Merger Agreement or any of the other Transaction Agreements.
(f) The Stockholder represents that any proxies heretofore given in respect of the Stockholder's Non-Trust Shares are not irrevocable, and that any such proxies are hereby revoked.
(g) In the case of each of Mary X. Xxxxxxx xxx Louixx Xxxxxxx Xxxxxxx, the Stockholder shall not decline appointment as a trustee of the Trust as contemplated by Section 15 of the Trust Agreement or otherwise unless she is not legally qualified to be appointed.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees during the term of this Agreement as follows:
(a) At any meeting of the stockholders of the Company Target called to vote upon the Merger Agreement, or the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) of the adoption by Target of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) Agreement. Such Stockholder hereby agrees not to take any action by written consent in any circumstance other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreementthan in accordance with this paragraph.
(b) At any meeting of the stockholders of the Company Target or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all of the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), ) any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger Takeover Proposal or other Acquisition transaction or occurrence which if proposed and offered to Target or its stockholders (or any of them) would be a Takeover Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles Target's Restated Certificate of Incorporation or Bylaws By-laws or other proposal, action or transaction involving the Company Target or any of its Subsidiaries subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction would, or could reasonably be expected to prevent or impede to, prevent, impede, interfere with, hinder or delay the consummation of the Merger or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change change, other 5 than pursuant to the Merger Agreement, in any manner the voting rights of the Company Target Common Stock, Target Series G Preferred Stock or any other voting securities of Target (collectively, “"Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction").
(c) Such Other than in accordance with the terms of this Agreement, such Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, therein or enter into any Contractcontract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of with respect to the Transfer of, any Subject Shares or any interest therein, therein to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Takeover Proposal or Frustrating Transaction otherwise with respect to any the Subject Shares, . Such Stockholder shall not commit or agree to take any action inconsistent with the foregoing. Notwithstanding any other than pursuant to provision of this Agreement. Nothing contained herein will be deemed to restrict the ability of any , each Stockholder to exercise any Company Stock Options in may Transfer all or a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms portion of such Company Stock Option or Stockholder's Subject Shares to any other person if such person expressly agrees in writing to be bound by all of the plans under which they were grantedprovisions of this Agreement.
(d) Subject to Section 11From and after the date of this Agreement, such Stockholder shall not, and shall cause not authorize or permit any of its Stockholder Representatives Subsidiaries or affiliates (as defined belowother than Target in accordance with the Merger Agreement) not or any of its or their directors, officers, employees, investment bankers, financial advisors, attorneys, accountants or other representatives to, directly or indirectly, (i) solicit, initiate initiate, encourage (including by way of furnishing information), or take any other action designed to facilitate facilitate, any inquiries or encourage the submission making of any Acquisition Proposalproposal that constitutes, a Takeover Proposal or a Frustrating Transaction, (ii) enter into any agreement with respect to any Takeover Proposal or Frustrating Transaction or (iii) participate in any discussions or negotiations with, furnish any information relating to regarding a Takeover Proposal or a Frustrating Transaction; provided that the Company or any foregoing shall not restrict actions taken by Stockholders in their capacity as directors of its Subsidiaries to, otherwise cooperate Target in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter accordance with Section 4.3 of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Except in his capacity as a director of Target, such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement statement, and shall not authorize or permit any of its Subsidiaries or affiliates (other than Target in accordance with the Merger Agreement) or any of its or their directors, officers, employees, partners, investment bankers, attorneys or other advisors or representatives to issue any press release or make any other public statement, with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this 6 Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, including any filings required under the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representativesExchange Act.
(f) Such Stockholder agrees not hereby waives any rights of appraisal, or right to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with dissent from the Merger, that such Stockholder may have.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Samples: Stockholders Agreement (Intermedia Communications Inc)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment or postponement thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(bi) At any meeting of the stockholders of the Company or at any adjournment or postponement thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause the Subject Shares of such Stockholder not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (iA) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, business combination, sale of substantial assets, joint venture, binding share exchange, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (iiB) any amendment of the Company’s Articles 's Second Restated Certificate of Incorporation or Bylaws Restated By-laws or other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction would, or could reasonably be expected to prevent to, prevent, impede, interfere with, hinder, frustrate, delay or impede or delay nullify the Merger Agreement, the consummation of the Merger or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “"Frustrating Transactions”").
(ii) Such Stockholder shall, within five Business Days of a request from Parent, irrevocably grant to, and appoint, Parent and individuals designated by Parent in such request, or any of them, and any individual designated in writing by any of them, and each of them individually, as such Stockholder's proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder, to vote the Subject Shares of such Stockholder, or grant a consent or approval in respect of the Subject Shares of such Stockholder, in a manner consistent with this Section 3. Such Stockholder understands and acknowledges that would otherwise facilitate a Frustrating TransactionParent is entering into the Merger Agreement in reliance upon such Stockholder's execution and delivery of this Agreement (including this agreement to execute and deliver such irrevocable proxy). Such Stockholder hereby affirms, and shall affirm in such irrevocable proxy, that such irrevocable proxy is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Stockholder under this Agreement. Such Stockholder hereby further affirms, and shall affirm in such irrevocable proxy, that such irrevocable proxy is coupled with an interest and may under no circumstances be revoked other than by termination of this Agreement in accordance with it terms. Such irrevocable proxy shall provide that such Stockholder ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue thereof, that such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the DGCL and that such irrevocable proxy shall automatically terminate upon the termination of this Agreement in accordance with its terms.
(c) Such Other than as expressly permitted by this Agreement, such Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift, bequest, appointment or otherwise) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangements) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person person (other than pursuant to this Agreement or than, if the transactions contemplated by the Merger AgreementAgreement are consummated, unless prior to any such Transfer by operation of law in the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or Merger), (ii) enter into any voting arrangementarrangement with respect to any Subject Shares, whether by proxy, voting agreement or otherwiseotherwise or (iii) take any action which would, or could reasonably be expected to, result in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to a diminution of the voting power represented by any Subject Shares, other than pursuant and shall not commit or agree to this Agreement. Nothing contained herein will be deemed to restrict take any of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject to Section 11, such Such Stockholder shall not, and nor shall cause such Stockholder authorize or permit any of its Stockholder Representatives affiliates (as defined belowother than the Company) not or any of its or their directors, officers, employees, partners, investment bankers, attorneys or other advisors or representatives to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action to facilitate facilitate, any inquiries with respect to a potential Takeover Proposal or encourage Frustrating Transaction or the submission of any Acquisition ProposalTakeover Proposal or Frustrating Transaction, (ii) enter into any agreement with respect to any Takeover Proposal or Frustrating Transaction or (iii) except as expressly permitted by Section 9, enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, or knowingly assist, assist or participate in, facilitate or encourage in any effort or attempt by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives person with respect to, immediately cease any and all existing activities, discussions Takeover Proposal or negotiations with any parties conducted heretofore with respect to any of the foregoingFrustrating Transaction. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Such Stockholder promptly shall notify advise Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify of any Takeover Proposal or Frustrating Transaction or inquiry made to such Stockholder with respect to or that could reasonably be expected to lead to a Takeover Proposal or Frustrating Transaction, the Third Party makingidentity of the person making or initiating any such Takeover Proposal, Frustrating Transaction or inquiry and the material terms and conditions of, of any such Acquisition Takeover Proposal, indication Frustrating Transaction or requestinquiry. Such Stockholder shall keep Parent fully informed of the status and details (including amendments or proposed amendments) of any such Takeover Proposal, Frustrating Transaction or inquiry.
(e) Such Stockholder shall not and not, nor shall not such Stockholder authorize or permit any of its Stockholder Representatives affiliates (other than the Company) or any of its or their directors, officers, employees, partners, investment bankers, attorneys or other advisors or representatives to, directly or indirectly, issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by this Agreement or the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder hereby waives any rights of appraisal, or rights to dissent from the Merger, that such Stockholder may have, and agrees not to exercise commence or assertparticipate in, and to take all actions necessary to opt out of any class in any class action with respect to, any dissenters’ claim, derivative or similar rights under Section 262 otherwise, against the Company (or any of its respective successors) relating to the negotiation, execution and delivery of this Agreement or the Merger Agreement or the consummation of the Delaware Law Merger or any of the other applicable law in connection with transactions contemplated by this Agreement or the MergerMerger Agreement.
(g) Such (i) In the event that the Merger Agreement shall have been terminated under circumstances where Parent is or may become entitled to receive the Termination Fee, such Stockholder shall use pay to Parent on demand an amount equal to all reasonable efforts to takeprofit (determined in accordance with Section 3(g)(ii)) of such Stockholder from the consummation of any Takeover Proposal that is consummated, or cause with respect to which an Acquisition Agreement was entered into, within 15 months after such termination. Any payment of profit under this Section 3(g)(i) shall be takenpaid in the same form as the consideration received from the Takeover Proposal (and, all actions, and to do, or cause to be done, and to assist and cooperate with Parent if the consideration so received was in doing, all things necessary, proper or advisable to consummate and make effectivemore than one form, in the most expeditious manner practicablesame proportion as the forms of consideration so received).
(ii) For purposes of Section 3(g)(i), the profit of any Stockholder from any Takeover Proposal shall equal (A) the aggregate consideration received by such Stockholder pursuant to such Takeover Proposal, valuing any non-cash consideration (including any residual interest in the Company) at its fair market value as of the date of such consummation plus (B) the fair market value, as of the date of disposition, of all Subject Shares of such Stockholder disposed of after the termination of the Merger Agreement and prior to the date of such consummation less (C) the aggregate consideration that would have been issuable or payable to such Stockholder if he or she had received the Merger Consideration pursuant to the Merger Agreement as executed on the date hereof, valuing each Parent ADS at its fair market value as of the date of first public announcement by the Company of its intention to terminate the Merger Agreement as if the Merger had been consummated on the date of such public announcement.
(iii) In the event that (A) prior to the Effective Time, a Takeover Proposal shall have been made and (B) the Effective Time of the Merger shall have occurred and Parent for any reason shall have increased the amount of Merger Consideration payable over that set forth in the Merger Agreement as executed on the date hereof (on a per share basis, the "Original Merger Consideration"), such Stockholder shall pay to Parent on demand an amount equal to the product of (1) the number of Subject Shares of such Stockholder and (2) the excess of (x) the per share cash consideration or the per share fair market value of any non- cash consideration, as the case may be, received by such Stockholder as a result of the Merger determined as of the Effective Time of the Merger, over (y) the fair market value of the Original Merger Consideration determined as of the date of the first increase in the amount of the Original Merger Consideration. Any payment under this Section 3(g)(iii) shall be paid in the same form as the Merger Consideration received by such Stockholder as a result of the Merger (and, if the consideration so received was in more than one form, in the same proportion as the forms of consideration so received).
(iv) For purposes of this Section 3(g), the fair market value of any non-cash consideration consisting of:
(A) securities listed on a national securities exchange or traded on the Nasdaq National Market of The Nasdaq Stock Market, Inc. ("Nasdaq National Market") shall be equal to the average closing price per share of such security as reported on such exchange or Nasdaq National Market for the five trading days prior to the date of determination; and
(B) consideration which is other than cash or securities of the type specified in clause (A) of this Section 3(g)(iv) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by the parties within 10 Business Days of the event requiring selection of such banking firm; provided, however, that if the parties are unable to agree within two Business Days after the date of such event as to the investment banking firm, then Parent, on the one hand, and the Stockholders, on the other hand, shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne equally by Parent, on the one hand, and the Stockholders, on the other hand. The determination of investment banking firm shall be binding upon the parties.
(v) Any payment of profit under Section 3(g)(i) or of amounts under Section 3(g)(iii) shall (A) if payable in cash, be paid by wire transfer of same day funds to an account designated by Parent and (B) if payable through a transfer of securities, be paid through delivery of such securities, suitably endorsed for transfer.
Appears in 1 contract
Samples: Stockholders Agreement (Collateral Therapeutics Inc)
Covenants of Each Stockholder. Each Stockholder, severally Stockholder covenants and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment or postponement thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger AgreementMerger.
(b) At any meeting of the stockholders of the Company Company, or at any adjournment thereof or postponement thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger Company Takeover Proposal or other Acquisition any transaction or occurrence that if proposed and offered to the Company or its stockholders (or any of them) would constitute a Company Takeover Proposal (other than the Merger Agreement and the Merger)collectively, "Alternative Transactions") or (ii) any amendment of the Company’s Articles Company Certificate or the by-laws of Incorporation the Company or Bylaws or any other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or materially impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or this Agreement or to deprive Parent of any material portion of the benefits to be received from the consummation of the transactions contemplated by this Agreement Merger or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock or any other capital stock or voting interests or securities of the Company (collectively, “"Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction").
(c) Such Other than pursuant to the Merger Agreement or this Agreement, such Stockholder shall not (i) sell, transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares of such Stockholder or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including of, or the creation or offer of any profit sharing or other derivative arrangement) of security in respect of, any Subject Shares of such Stockholder (or any interest therein), to or with any Person person other than pursuant than, in the case of the Primary Stockholder to Citigroup Inc. or any of its direct or indirect subsidiaries which shall have agreed to be bound by this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into as a Stockholder by a written agreement with reasonably satisfactory to Parent on terms substantially identical that has been delivered to the terms of this Agreement Parent, or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject SharesShares of such Stockholder, other than pursuant and shall not commit or agree to this Agreementtake any of the foregoing actions. Nothing contained herein will be deemed to restrict the ability Such Stockholder shall not, nor shall such Stockholder permit any entity under such Stockholder's control to, deposit any Subject Shares of any such Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedvoting trust.
(d) Subject to Section 11, such Such Stockholder shall not, and nor shall cause such Stockholder permit any of its Subsidiaries to, nor shall it authorize or permit any director, officer or employee of such Stockholder Representatives (as defined below) not or any of its Subsidiaries or any Representative of such Stockholder or any of its Subsidi aries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate facilitate, any Alternative Transaction or encourage the submission of any Acquisition ProposalFrustrating Transaction, (ii) enter into any agreement with respect to any Alternative Transaction or Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, or knowingly assist, assist or participate in, facilitate or encourage in any effort or attempt by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives person with respect to, immediately cease any and all existing activities, discussions Alternative Transaction or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestFrustrating Transaction.
(e) Such Stockholder shall not use 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 transactions contemplated by this Agreement. Such Stockholder shall not commit or agree to take any action inconsistent with the transactions contemplated by this Agreement.
(f) Such Stockholder shall not, nor shall such Stockholder permit any of its Subsidiaries to, nor shall it authorize or permit any director, officer or employee of such Stockholder Representatives or any of its Subsidiaries or any Representative of such Stockholder or any of its Subsidiaries to, directly or indirectly, issue any press release or make any other public statement or announcement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement Agreement, without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Notwithstanding anything to the contrary contained herein, nothing in this Section 3 shall prohibit any Stockholder shall use all reasonable efforts to takefrom, or cause to be takenin his capacity as an officer and/or director of the Company, all taking any actions, and on behalf of the Company, that the Board of Directors of the Company is permitted to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in take under Section 4.02 of the most expeditious manner practicable, the MergerMerger Agreement.
Appears in 1 contract
Samples: Voting Agreement (Olin Corp)
Covenants of Each Stockholder. Each Except as may otherwise be consented to by Newco in writing, such Stockholder, severally only as to itself, covenants and not jointly, agrees as follows:
(a) At any meeting of the stockholders holders of the Company Common Stock and the holders of the Preferred Stock of the Company (together, the “Stockholders Meeting”) called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger AgreementAgreement (including the treatment of the Subject Shares), or at any adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement Contract to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger or other Acquisition Alternative Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles Certificate of Incorporation or Bylaws By-laws or other proposal, action or transaction involving the Company or any of its Subsidiaries subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could is reasonably be expected likely to prevent or materially impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent Newco of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock or the Preferred Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction).
(c) Such Stockholder shall not (i) prior to the Stockholders Meeting, sell, transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option option, call or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder stockholder agreement with Parent Newco on terms substantially identical to the terms of this Agreement or agrees to become a party to this Agreement pursuant to a joinder agreement satisfactory to Newco or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Alternative Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 113(h) with regard to Proha Plc (“Proha”), such Stockholder and its subsidiaries (other than the Company which is subject to restrictions in the Merger Agreement) shall not, and nor shall cause such Stockholder or any of its subsidiaries authorize or direct any person or permit any Representative of such Stockholder Representatives (as defined below) not or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate facilitate, any Alternative Proposal or encourage Frustrating Transaction or the submission making of any Acquisition inquiry or proposal that could reasonably be expected to lead to a Alternative Proposal, or (ii) enter into into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any information relating to person (other than Newco or its Representatives or the Company or its Representatives) any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore information with respect to any Alternative Proposal or Frustrating Transaction. Notwithstanding the foregoing and notwithstanding Section 3(e), nothing in this Agreement shall limit or restrict any person that is a director of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but from acting in no event later than 24 hours) after receipt by such Stockholder in his, his or her or its capacity as such (or its Stockholder Representative) a member of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or the Board of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify Directors of the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestCompany.
(e) (i) Such Stockholder shall not and shall not permit commit or agree to take any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement action inconsistent with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without or the prior written consent of Parent, except as may be required transactions contemplated by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representativesMerger Agreement.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Samples: Shareholder Agreements (Artemis International Solutions Corp)
Covenants of Each Stockholder. Each From and after the date hereof and until the termination of this Agreement in accordance with Section 8, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger, the Merger Agreement, the Merger Asset Purchase or any of the other transactions contemplated by the Merger Agreement, Asset Purchase Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitation) with respect to the Merger, the Merger Agreement, the Merger Asset Purchase or any of the other transactions contemplated by the Merger Asset Purchase Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger and the Asset Purchase, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the Asset Purchase Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Asset Purchase Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of a material amount of assets (other than the Asset Purchase Agreement and the Asset Purchase), reorganization, recapitalization, dissolution, liquidation or winding-up of or by the Company or any other takeover proposal (collectively, "Takeover Proposal"), (ii) any action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement, the Asset Purchase Agreement or this Agreement or (iii) (x) any material amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws, (y) any change in a majority of the persons who constitute the Board of Directors of the Company or (z) any other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment is intended or other proposal, action or transaction could reasonably be expected to prevent impede, frustrate, prevent, delay or impede or delay nullify (A) the consummation ability of the Company to consummate the Merger or the other transactions contemplated by the Merger Agreement Asset Purchase or the consummation (B) any of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, the Asset Purchase Agreement or change in the Merger Agreement. The Stockholder further agrees not to commit or agree to take any manner action inconsistent with the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transactionforegoing.
(c) Such Stockholder shall Each Stockholder, severally and not jointly, agrees not to (i) offer to sell, sell, transfer, encumber, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contractcontract, option or other arrangement with respect to or consent to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, therein to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of the Merger, (ii) except as contemplated hereby, grant any proxies or powers of attorney with respect to the Subject Shares, deposit any Subject Shares into a voting trust or enter into any voting arrangement with respect to the Subject Shares, or any interest in the foregoing, except with Parent or Sub, (iii) take any action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect or have the effect of preventing or disabling the Stockholder from performing such Stockholder's obligations under this Agreement or (iiiv) enter into commit or agree to take any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Each Stockholder hereby irrevocably waives any rights of appraisal or rights to dissent from the Merger that the Stockholder may have.
(e) Each Stockholder agrees with, and covenants to, Parent that the Stockholder shall not request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of the Subject Shares, unless such transfer is made in compliance with this Agreement. In the event of a stock dividend or distribution, or any change in the Common Stock by reason of any stock dividend or distribution, or any change in the Common Stock by reason of any stock dividend, split-up, recapitalization~combination, exchange of shares or the like, the term "Subject Shares" shall be deemed to Section 11refer to and include the Subject Shares as well as all such stock dividends and distributions and any shares into which or for which any or all of the Subject Shares may be changed or exchanged and the Purchase Price (as defined herein) shall be accordingly adjusted. Each Stockholder shall be entitled to receive any cash dividend paid by the Company during the term of this Agreement until the Subject Shares are canceled in the Merger or purchased hereunder.
(f) Each Stockholder, severally and not jointly, shall not, nor shall it authorize or permit any partner, officer, director or employee of, or any investment banker, attorney or other advisor or representative of, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, Takeover Proposal or (ii) enter into or participate in any discussions discussions, conversations, negotiations or negotiations withother communications regarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way withway, assist or knowingly assist, participate in, facilitate or encourage any effort or attempt by any Third Party other person or entity, to seek to do any of the foregoing or take any other action to facilitate any inquiries or the making of any proposal that is seeking to makeconstitutes, or has madeis likely to lead to, an Acquisition any Takeover Proposal; provided, (iii) enter into any agreement in principlehowever, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting that the foregoing, it foregoing shall not restrict a Stockholder who is agreed that any violation also a director of the restrictions on Company from taking actions in such Stockholder set forth Stockholder's capacity as a director to the extent and in the preceding sentence circumstances permitted by a Stockholder Representative shall be a breach Section 4.02 of this Section by such the Merger Agreement. Each Stockholder. Upon execution of this Agreement, such Stockholder shallin its capacity as such, and it shall cause any of its Stockholder Representatives to, will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to takeTHE STOCKHOLDER HEREBY GRANTS TO, or cause to be takenAND APPOINTS SUB AND ANY DESIGNEE OF SUB, all actionsEACH OF THEM INDIVIDUALLY, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the MergerSTOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION OF THIS AGREEMENT) PROXY AND ATTORNEY-IN-FACT WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SUBJECT SHARES OF STOCKHOLDER AS INDICATED IN SECTION 3(A) AND 3(B) ABOVE. THE STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION OF THIS AGREEMENT) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY STOCK HOLDER WITH RESPECT TO SUCH STOCKHOLDER'S SUBJECT SHARES.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder, acting as a stockholder of the Company and not as an officer or director of the Company, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall shall, including by executing a written consent if requested by Parent, vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company’s Articles 's Restated Certificate of Incorporation or Bylaws Amended and Restated By-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede nullify, or delay the consummation result in a breach of any covenant, representation or warranty or any other obligation of the Company under or with respect to, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) Stock. The Stockholder shall not to commit or that would otherwise facilitate a Frustrating Transactionagree to take any action inconsistent with the foregoing.
(c) Such The Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of of, any Subject Shares (or any interest therein, ) to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject SharesShares and shall not to commit or agree to take any of the foregoing actions. The Stockholder shall not, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of nor shall such Stockholder permit any Stockholder to exercise entity under such Stockholder's control to, deposit any Company Stock Options Subject Shares in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedvoting trust.
(d) Subject to Section 11, such The Stockholder shall not, and nor shall cause it authorize or permit any of its employee or affiliate of, or any investment banker, financial advisor, attorney, accountant or other representative of, the Stockholder Representatives (as defined below) not to, directly or indirectlyindirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any action to facilitate facilitate, any inquiries or encourage the submission making of any Acquisition Proposalproposal that constitutes, or could reasonably be expected to lead to, a Takeover Proposal or (ii) enter into into, continue or otherwise participate in any discussions or negotiations withregarding , or furnish to any information relating to the Company or person (other than Parent and any of its Subsidiaries affiliates and representatives) any information with respect to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Takeover Proposal. Without limiting the foregoing, it is agreed understood that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative any employee or affiliate of, or any investment banker, financial advisor, attorney, accountant or other representative of such Stockholder, whether or not such Person is purporting to act on behalf of such Stockholder, shall be deemed to be a breach violation of this Section 3(d) by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any Until the earlier of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to (i) the Merger Agreement, this Agreement, consummation of the Merger or any (ii) termination of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used hereinpursuant to its terms, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to the Merger Agreement, the Merger or any other transaction contemplated by the Merger Agreement without the prior written consent of Parent, except as may be required by Applicable Law.
(f) If, at the time the Merger Agreement is submitted for approval to the stockholders of the Company, a Stockholder is an "affiliate" of the Company for purposes of Rule 145 under the Securities Act, such Stockholder shall deliver to Parent on or prior to the Closing Date a written agreement substantially in the form attached as Exhibit B to the Merger Agreement.
(g) The Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement. Each such beneficiary hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
(h) The Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement and this Agreement, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights under Section 262 of the DGCL or other applicable law in connection with the Merger.
(i) (i) In the event that the Merger Agreement shall have been terminated under circumstances where Parent is or may become entitled to receive the Termination Fee, each Stockholder shall pay to Parent on demand an amount equal to all profit (determined in accordance with Section 3(i)(ii)) of such Stockholder, solely in his capacity as a stockholder of the Company, from the consummation of any Takeover Proposal that is consummated, or the definitive agreement with respect to which is entered into by the Company, in either case within 12 months after such termination.
(ii) For purposes of this Section 3(i), the profit of any Stockholder, solely in his capacity as a stockholder of the Company, from the consummation of any Takeover Proposal shall equal (A) the aggregate consideration received by such Stockholder, solely in his capacity as a stockholder of the Company, as a result of the consummation of such Takeover Proposal, valuing any non-cash consideration (including any residual interest in the Company) at its fair market value on the date of such consummation plus (B) the fair market value, on the date of sale or other disposition, of all Subject Shares of such Stockholder sold or otherwise disposed of after the termination of the Merger Agreement and prior to the date of such consummation less (C) the product of $2.72 and the number of Subject Shares owned by such Stockholder, which amount is payable to such Stockholder pursuant to the Merger Agreement, as in effect on the date hereof (the "Original Merger Consideration").
(iii) In the event that (A) prior to the Effective Time, a Takeover Proposal shall have been made to the Company or shall have been made directly to the stockholders of the Company generally or shall have otherwise become publicly known or any person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and (B) the Effective Time shall have occurred and Parent for any reason shall have increased the amount of the Original Merger Consideration, each Stockholder shall pay to Parent on demand an amount equal to the product of (x) the number of Subject Shares of such Stockholder and (y) 100% of the excess, if any, of (I) the per share cash consideration or the per share fair market value of any non-cash consideration, as the case may be, received by the Stockholder as a result of the consummation of the Merger, pursuant to the Merger Agreement as in effect on the date of such consummation, determined as of the Effective Time of the Merger, over (II) the Original Merger Consideration.
(iv) For purposes of this Section 3(i), the fair market value of any non-cash consideration consisting of:
(A) securities listed on a national securities exchange or traded on The Nasdaq Stock Market shall be equal to the average closing price per share of such security as reported on such exchange or The Nasdaq Stock Market for the five trading days after the date of determination; and
(B) consideration which is other than cash or securities of the form specified in clause (i) of this Section 3(i)(iv) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by Parent and the Stockholder owning the largest number of Subject Shares as set forth on Schedule A attached hereto within 10 business days of the event requiring the selection of such investment banking firm; provided, however, that if such parties are unable to agree within two business days after the date of such event as to the investment banking firm, then such parties shall each select one investment banking firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne equally by Parent, on the one hand, and the Stockholders, on the other hand. The determination of the investment banking firm shall be binding upon the parties.
(v) Any payments under this Section 3(i) shall be paid to Parent as designated by it with the same kind of consideration received by each Stockholder in the transaction giving rise to such payment obligation.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(a1) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to vote upon seek the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, Stockholder Approval or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions transaction contemplated by the Merger Agreement is sought, such the Stockholder shall shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) all the Subject Shares of such the Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the of adoption of the Merger Agreement and the approval of, of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b2) At The Stockholder hereby irrevocably grants to, and appoints, Parent and Georxx X. Xxxxxxxx XXX, Philxxxx Xxxxxxx xxx Geraxx Xxxx, xx any meeting of them, and any individual designated in writing by any of them, and each of them individually, as the Stockholder's proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a voteStockholder, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall to vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record the Stockholder, or beneficially) against, and shall not grant a consent to (and shall cause not to be consented to), any or approval in respect of the following (or any agreement to enter into, effect, facilitate or support any Subject Shares of the following): Stockholder (i) any merger agreement, merger or other Acquisition Proposal (other than in favor of adoption of the Merger Agreement and approval of the Merger)Merger and any other transactions contemplated by the Merger Agreement, or (ii) against any Takeover Proposal and (iii) against any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholderssubsidiaries, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede or delay the consummation nullify any provision of the Merger Agreement, the Merger or the any other transactions transaction contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) transfer, pledge, assign, tender or otherwise dispose any class of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) capital stock of any Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.the
Appears in 1 contract
Samples: Stockholder Agreement (Mp3 Com Inc)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitationconsent) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): : (i) any merger agreement, merger or other Acquisition Takeover Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles 's Certificate of Incorporation or Bylaws By-laws or other proposal, action or transaction involving the Company or any of its Subsidiaries subsidiaries or any of its stockholdersstock holders, which amendment or other proposal, action or transaction could reasonably be expected to would prevent or impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “"Frustrating Transactions”) "). Such stockholders shall not commit to or agree to take any action inconsistent with the foregoing or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to its vote, consent or other approval sought in connection with the adoption by the stockholders of the Company of the Merger Agreement or the approval of the Merger or the other transactions contemplated by the Merger Agreement (and if entered into or executed, any Subject Sharessuch voting arrangement, voting agreement or other agreement shall not be effective), and shall not commit or agree to take any of the foregoing actions, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of Such Stockholder shall not, nor shall such Stockholder permit any Stockholder to exercise entity under such Stockholder's control to, deposit any Company Stock Options Subject Shares in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedvoting trust.
(d) Each Stockholder hereby grants to Parent an irrevocable option to purchase any or all the Subject Shares of such Stockholder, at any time or from time to Section 11time after a Takeover Proposal has been made, such for a purchase price equal to $4.00 per share in cash (the "Parent Option Price").
(e) Such Stockholder shall not, and nor shall cause such Stockholder permit any of its subsidiaries to, or authorize or permit any director, officer, employee or general partner of such Stockholder Representatives (as defined below) not or any of its subsidiaries, or any investment banker, attorney, accountant or other advisor or representative of such Stockholder or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate facilitate, any Takeover Proposal or encourage other Frustrating Transaction or any inquiries or the submission making of any Acquisition Proposalproposal that constitutes a Takeover Proposal or other Frustrating Transaction, (ii) enter into any agreement with respect to any Takeover Proposal or other Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, or knowingly assist, assist or participate in, facilitate or encourage in any effort or attempt by any Third Party that is seeking to makeperson with respect to, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement Takeover Proposal or other similar instrument constituting or relating to an Acquisition ProposalFrustrating Transaction. Without limiting the foregoing, it is agreed understood that any violation in any material respect of the restrictions on such Stockholder set forth in the preceding sentence by a any director, officer, employee or general partner of, or any investment banker, attorney, accountant or other advisor or representative of such Stockholder Representative or any of its subsidiaries, whether or not such Person is purporting to act on behalf of such Stockholder, shall be deemed to be a breach violation of this Section 3(e) by such Stockholder. Upon execution Such Stockholder shall promptly advise Parent orally and in writing of this Agreement, any Takeover Proposal or inquiry made to such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her Takeover Proposal or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestother Frustrating Transaction.
(ef) Such Stockholder shall not and not, nor shall not such Stockholder permit any of its subsidiaries to, or authorize or permit any director, officer, employee or general partner of such Stockholder Representatives or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of such Stockholder or any of its subsidiaries to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(fg) Such Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement and this Agreement, the Merger and the other transactions contemplated by the Merger Agreement. Such Stockholder hereby waives, and agrees not to exercise or assert, any dissenters’ appraisal or similar rights under Section 262 of the Delaware Law DGCL or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 5, each Stockholder, severally and not jointlyin its capacity as such, agrees as follows:
(a) At the Company Stockholders’ Meeting or at any adjournment, postponement or continuation thereof or at any other stockholder meeting of the stockholders of Company occurring prior to the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, or in any other circumstances Stockholders’ Meeting upon which a vote, consent, adoption vote or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such each Stockholder shall vote (or cause to be voted) all the Subject Shares of held by such Stockholder (owned of record or beneficiallyi) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) of the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement Agreement; and (ii) against any Alternative Transaction Proposal or Alternative Transaction or any other matter intended action which would reasonably be expected to facilitate adversely affect or interfere with the consummation of the transactions contemplated by the Merger Agreement. Any such vote shall be cast in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the results of such vote. Each Stockholder agrees not to enter into any agreement or commitment with any person the effect of which would be inconsistent with or violative of the provisions and agreements contained in this Section 3(a).
(b) At any meeting of the stockholders of the Company Each Stockholder agrees not to, directly or at any adjournment thereof or in any other circumstances upon which a voteindirectly, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreementsell, merger or other Acquisition Proposal (other than the Merger Agreement and the Merger)transfer, or (ii) any amendment of the Company’s Articles of Incorporation or Bylaws or other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) transfertender, pledge, assignencumber, tender assign or otherwise dispose of (including by gift) (collectively, a “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, ) or enter into any Contractagreement, option or other arrangement with respect to, or consent to a Transfer of, or convert or agree to convert, any or all of the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person person, other than pursuant to this Agreement or in accordance with the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) grant any proxies (other than the Company proxy card in connection with the Company Stockholders’ Meeting or at any other stockholders’ meeting of the Company if and to the extent such proxy is consistent with the Stockholder’s obligations under Section 3(a) hereof), deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any of the Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed Such Stockholder further agrees not to restrict commit or agree to take any of the foregoing actions or take any action that would have the effect of preventing, impeding, interfering with or adversely affecting its ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted perform its obligations under the terms of such Company Stock Option or the plans under which they were grantedthis Agreement.
(dc) Subject Such Stockholder shall not, nor shall such Stockholder permit any controlled affiliate of such Stockholder to, nor shall such Stockholder act in concert with or permit any controlled affiliate to Section 11act in concert with any person to make, or in any manner participate in, directly or indirectly, a “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or powers of attorney or similar rights to vote, or seek to advise or influence any person with respect to the voting of, any shares of Company Common Stock intended to facilitate any Alternative Transaction Proposal or Alternative Transaction or to cause stockholders of the Company not to vote to adopt the Merger Agreement. Such Stockholder shall not, and shall cause direct any investment banker, attorney, agent or other adviser or representative of its such Stockholder Representatives (as defined below) not to, directly or indirectlyindirectly enter into, (i) solicit, initiate initiate, conduct or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in continue any discussions or negotiations with, furnish or knowingly encourage or respond to any inquiries or proposals by, or provide any information to, any person, other than Parent or Merger Sub, relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Alternative Transaction Proposal. Without limiting Each Stockholder hereby represents that, as of the foregoingdate hereof, it is agreed that any violation of the restrictions on such Stockholder set forth not engaged in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore party other than Parent, Merger Sub and the Company with respect to any Alternative Transaction Proposal.
(d) Section 3(b) shall not prohibit a transfer of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party Stockholder (i) if such Stockholder is an individual, (A) to any member of such Stockholder’s immediate family, or to a trust for the benefit of such Stockholder or any member of such Stockholder’s immediate family, or (B) upon the death of such Stockholder, or (ii) if such Stockholder is a partnership, limited liability company or trust, to one or more partners, members or beneficiaries of such Stockholder or to an affiliated person (as defined in the Merger Agreement) under common control with such Stockholder; provided, however, that is reasonably likely a transfer referred to make or has made an Acquisition Proposal in clauses (i) and (ii) of this sentence shall be permitted only if, as a precondition to such Stockholder in histransfer, her or its capacity as such, which notice shall be provided orally and the transferee agrees in writing and shall identify the Third Party making, and to be bound by all of the terms and conditions of, any such Acquisition Proposal, indication or requestof this Agreement.
(e) Such Stockholder Section 3(b) shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means prohibit (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of the exercise by such Stockholder of any option to acquire shares of Company Common Stock held by such Stockholder and disclosed in the footnote to Schedule A and (ii) the subsequent sale of any Subject Shares issued to such Stockholder upon such exercise; provided, however, that the number of Subject Shares held by such Stockholder shall at no time prior to the Company Stockholders’ Meeting be less than the number of Subject Shares disclosed in Schedule A as being held by the Stockholder (excluding, for any Stockholder that is not a natural personthis purpose, any Subject Shares that are beneficially owned by the Stockholder by virtue of such the Stockholder’s Subsidiaries or right to acquire such shares within sixty (60) days after the date hereof); and provided, further, that to the extent reasonably practicable such Stockholder shall not sell any Subject Shares acquired upon the exercise of its or their officersoptions until after the Company Stockholders’ Meeting, directors, employees, investment bankers, attorneys, accountants, consultants except to the extent that (x) it is reasonably certain that the FCC Consents and other agents, advisors, or other representatives.
PSC Consents (feach as defined in the Merger Agreement) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 will occur in advance of the Delaware Law Company Stockholders’ Meeting or other applicable law in connection with (y) such sale is necessary to mitigate the Mergerimpact on such Stockholder of Section 409A of the Internal Revenue Code of 1986, as amended.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, agrees agrees, subject to the terms and conditions of this Agreement, as follows:
(aA) In connection with any closing of a purchase and sale pursuant to the exercise of an Option, each Stockholder agrees to deliver to the Escrow Agent promptly after receipt of a notice of exercise, all certificates evidencing the Subject Shares held by such Stockholder, duly endorsed in blank for transfer, or accompanied by stock powers and such other documents as may be necessary in the Investor's judgment to transfer record ownership of the Subject Shares being sold pursuant to such exercise to or as directed by the Investor.
(B) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficiallyexcept for the Series D Stock, unless it shall first have been converted into Common Stock) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated adoption by the Merger Agreement and (ii) any other matter intended to facilitate the consummation Company of the transactions contemplated by the Merger Agreement.
(bC) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficiallyexcept for the Series D Stock, unless it shall first have been converted into Common Stock) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, merger or other Acquisition Proposal (other than Alternative Transaction as such term is defined in Section 5.2 of the Merger Agreement and the Merger)Agreement, or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of any class of Company Common Stock, or (iii) any action that would cause the Company Common Stock (collectivelyto breach any representation, “Frustrating Transactions”) warranty or that would otherwise facilitate a Frustrating Transactioncovenant contained in the Merger Agreement. Subject to Section 11, the Stockholder further agrees not to enter into any agreement or take any action inconsistent with the foregoing.
(cD) Such The Stockholder shall not not, prior to the earliest of (i) the Effective Time and (ii) the termination of this Agreement in accordance with its terms, (A) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, -------- any or all of such Subject Shares or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, to any Person other than pursuant person (unless such person agrees in writing to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee be bound by all of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement and written notice of such Transfer is given promptly to Investor) other than pursuant to the terms of the Merger or (iiB) enter into any voting arrangement, directly or indirectly, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any of the Subject Shares, other than pursuant and the Stockholder agrees not to this Agreement. Nothing contained herein will be deemed commit or agree to restrict take any of the ability of any Stockholder foregoing actions.
(E) Subject to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such during the term of this Agreement, the Stockholder shall not, and nor shall cause it permit any of its Stockholder Representatives (as defined below) not investment banker, financial advisor, attorney, accountant or other representative retained by it, to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate facilitate, any inquiries or encourage the submission making of any Acquisition Proposal, proposal that may lead to an Alternative Transaction or (ii) enter into or participate in any discussions or negotiations withregarding any proposed Alternative Transaction.
(F) [intentionally left blank]
(G) Such Stockholder, furnish and any information relating beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to the Company revoke or terminate such trust or take any of its Subsidiaries toother action which would restrict, otherwise cooperate limit or frustrate in any way withthe transactions contemplated by this Agreement.
(H) Each Stockholder agrees that to the extent he or it receives notice, pursuant to Section 2, of Investor's exercise of its Option, he or knowingly assistit will, participate inin accordance with applicable law, facilitate or encourage promptly (x) convert such shares of Preferred Stock owned by it into Common Stock (provided that any effort such conversion shall be contemporaneous with the purchase pursuant to such exercise of the Option) and (y) exercise such Warrants and Company Stock Options owned by any Third Party it. With respect to Warrants and Company Stock Options that is seeking are not exercised prior to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoingEffective Time, it is agreed that any violation of the restrictions on such each Stockholder set forth in the preceding sentence by a Stockholder Representative shall be entitled to a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative "cashless net proceeds" exercise of such Stockholder Warrants and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representativesCompany Stock Options at the Effective Time.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Samples: Stockholder Agreement (Three Rivers Acquisition Corp)
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 5, each Stockholder, severally and not jointlyin his capacity as such, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, Stockholders’ Meeting or at any adjournment thereofadjournment, postponement or continuation thereof or in any other circumstances circumstance occurring prior to the Company Stockholders’ Meeting upon which a vote, consent, adoption stockholder vote or other stockholder approval (including by written consent solicitation) with respect to the Merger Agreementand the Merger Agreement is sought, each Stockholder shall vote (or cause to be voted) the Subject Shares beneficially owned (as defined in Recital A above) by such Stockholder (i) in favor of the approval of the Merger and the approval and adoption of the Merger Agreement and the terms thereof, in favor of each of the other actions contemplated by the Merger Agreement and in favor of any action in furtherance of any of the foregoing; (ii) against any action or agreement that would result in a breach of any representation, warranty, covenant or obligation of the Company in the Merger Agreement and (iii) except with the written consent of Parent and Merger Sub, against (A) any Company Acquisition Proposal, (B) any reorganization, recapitalization, dissolution or liquidation of the Company or any subsidiary of the Company; (C) any change in the individuals who serve as members of the board of directors of the Company; (D) any amendment to the Company’s certificate of incorporation or bylaws; (E) any material change in the capitalization of the Company or the Company’s corporate structure; and (F) any other action which is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement or this Agreement. Any such vote shall be cast in accordance with such procedures relating thereto so as to ensure that it is sought, such Stockholder shall vote (or cause to be voted) all duly counted for purposes of determining that a quorum is present and for purposes of recording the Subject Shares results of such vote. Each Stockholder (owned agrees not to enter into any agreement or commitment with any Person the effect of record which would be inconsistent with or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption violative of the Merger Agreement provisions and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreementagreements contained in this Section 3(a).
(b) At any meeting of the stockholders of the Company Each Stockholder agrees not to, directly or at any adjournment thereof or in any other circumstances upon which a voteindirectly, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreementsell, merger or other Acquisition Proposal (other than the Merger Agreement and the Merger)transfer, or (ii) any amendment of the Company’s Articles of Incorporation or Bylaws or other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) transfertender, pledge, assignencumber, tender assign or otherwise dispose of (including by gift) (collectively, a “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, ) or enter into any Contract, agreement, option or other arrangement with respect to a Transfer, or consent to a Transfer of, or enter into a Constructive Sale (as defined below) with respect to, any or all of the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest thereinShares, to any Person other than pursuant to this Agreement or in accordance with the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) grant any powers of attorney or consents, grant any proxies (other than the Company proxy card in connection with the Company Stockholders’ Meeting if and to the extent such proxy is consistent with such Stockholder’s obligations under Section 3(a) hereof), deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any of the Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options Agreement or in a “net exercise” manner consistent with such Stockholder’s obligations under Section 3(a) hereof. Such Stockholder further agrees not to commit or “cashless exercise” manner agree to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, and shall cause take any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate the foregoing actions or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate that would in any way withprevent, impede, interfere with or knowingly assist, participate in, facilitate adversely affect his ability to perform his obligations under this Agreement. Notwithstanding the foregoing or encourage any effort by any Third Party that is seeking anything to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder contrary set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, each Stockholder may Transfer any or all of the Subject Shares (1) by will, or by operation of law, in which case this Agreement shall bind the transferee, or (2) to A) Stockholders’ spouse, children, parents or siblings (collectively, “Family Members”), (B) any trust solely for the benefit of Stockholder and/or any Family Member(s) and of which Stockholder and/or any such Stockholder shallFamily Member(s) is the trustee or are the trustees, and it shall cause (C) any of its partnership, corporation or limited liability company which is wholly owned and controlled by Stockholder Representatives toand/or any such Family Member(s), immediately cease any and all existing activitiesso long as the transferee, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal prior to such Stockholder in hisTransfer, her or its capacity executes a counterpart of this Agreement (with such modifications as Parent may reasonably request solely to reflect such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, transfer) and the terms and conditions ofProxy, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any substantially in the form of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable lawAnnex A hereto. As used herein, the term “Stockholder RepresentativeConstructive Sale” means (i) for shall mean a short sale with respect to any individual StockholderSubject Shares, entering into or acquiring an offsetting derivative contract with respect to any investment bankerSubject Shares, attorney, accountant, consultant and entering into or acquiring a futures or forward contract to deliver any Subject Shares or entering into any other agent, advisor or representative derivative transaction that has the effect of such Stockholder materially changing the economic benefits and (ii) for any Stockholder that is not a natural person, any risks of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representativesownership.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Samples: Voting Agreement (Inforte Corp)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(a) At any meeting Immediately following the execution and delivery of the stockholders of the Company called to vote upon the Merger Agreement, the Merger Stockholder shall execute and deliver the Stockholder Consent to the Company. The Stockholder will not thereafter revoke or any of the other transactions contemplated by the Merger Agreementmodify, or at any adjournment thereofencourage other Stockholders to revoke or modify, or in any other circumstances upon which a votethe Stockholder Consent, consent, adoption or other approval (including by and the Stockholder will not thereafter execute another written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such the Stockholder (owned of record for any proposal that will approve any action in conflict with the Stockholder Consent or beneficially) entitled that would otherwise be reasonably likely to vote thereon in favor ofimpede, and shall consent to (frustrate, prevent or cause to be consented to), (i) the adoption nullify any provision of the Merger Agreement and the approval ofAgreement, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate or the consummation of any of the transactions contemplated by the Merger Agreementhereby or thereby.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles of Incorporation or Bylaws or other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could reasonably be expected to prevent or impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction.
(c) Such The Stockholder shall not (i) transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person person other than pursuant to the Merger Agreement, other than pursuant to this Agreement or the Merger another Ancillary Agreement, unless prior and shall not commit or agree to take any such Transfer of the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection withforegoing actions. Transfer" means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of (by operation of law or otherwise), either voluntarily or involuntarily, or to enter into any Acquisition Proposal contract, option or Frustrating Transaction other arrangement with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of (by operation of law or otherwise), any Subject Shares; provided, other than however, that a merger, consolidation or similar business combination transaction in which F Co Parent is a constituent corporation (or otherwise a party including, for the avoidance of doubt, a transaction pursuant to which a Person acquires all or a portion of F Co Parent's outstanding capital stock, whether by tender or exchange offer, by share exchange, or otherwise) shall not be deemed to be the Transfer of any Subject Shares beneficially owned by F Co Parent or any of its Subsidiaries, provided that the primary purpose of any such transaction is not to avoid the provisions of this Agreement and that the successor or surviving person to such a merger, consolidation or similar business combination transaction, if not F Co Parent, expressly assumes all obligations of F Co Parent under this Agreement. Nothing contained herein will be deemed For purposes of this Agreement, the term Transfer shall include the sale of an Affiliate of F Co Parent or F Co Parent's interest in an Affiliate that beneficially owns Subject Shares unless such Transfer is in connection with a merger, amalgamation, plan of arrangement or consolidation or similar business combination transaction referred to restrict in the ability first proviso of any Stockholder to exercise any Company Stock Options in a “net exercise” the previous sentence.
(c) At or “cashless exercise” manner prior to the extent otherwise permitted under Closing, the terms of such Company Stock Option or Stockholder shall execute and deliver each Ancillary Agreement to which it has been designated to become a party thereto pursuant to the plans under which they were grantedMerger Agreement.
(d) Subject Each Stockholder hereby agrees that effective immediately prior to Section 11the Effective Time, such Stockholder shall not, and shall cause any each of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicitthe Stockholders Agreement, initiate or take any action to facilitate or encourage dated as of March 9, 2005, by and among the submission of any Acquisition ProposalF Co and the Stockholders, and (ii) enter into the Registration Rights Agreement, dated as of March 9, 2005, by and among F Co and the Stockholders shall be automatically terminated without any further action on the part of any party hereto, and thereafter such Stockholders Agreement and Registration Rights Agreement shall be of no further force or participate in any discussions or negotiations witheffect. TPG GenPar IV, furnish any information relating L.P. agrees that effective immediately prior to the Company or any Effective Time, that the Management Agreement, dated as of its Subsidiaries toMarch 9, otherwise cooperate in any way with2005, or knowingly assistby and between F Co and TPG GenPar IV, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative L.P. shall be a breach automatically terminated without any further action on the part of this Section by any party hereto, and thereafter such StockholderManagement Agreement shall be of no further force or effect. Upon execution of this THL Managers V, LLC agrees that effective immediately prior to the Effective Time, that the Management Agreement, such Stockholder shalldated as of March 9, 2005, by and between F Co and THL Managers V, LLC shall be automatically terminated without any further action on the part of any party hereto, and it thereafter such Management Agreement shall cause be of no further force or effect. Evercore Advisors L.L.C. agrees that effective immediately prior to the Effective Time, that the Management Agreement, dated as of March 9, 2005, by and between F Co and Evercore Advisors L.L.C. shall be automatically terminated without any further action on the part of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant toparty hereto, and subject to the same conditions contained in, the Merger Agreement, thereafter such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice Management Agreement shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication of no further force or requesteffect.
(e) Such Each Stockholder (other than F Co Parent) hereby agrees that, effective as of the Effective Time and thereafter, such Stockholder shall not and shall not permit have no rights to approve or veto any of its Stockholder Representatives to, directly changes or indirectly, issue any press release or make any other public statement with respect amendments to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representativesIntercompany Agreements.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Samples: Commitment Agreement (Fidelity National Financial Inc /De/)
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 10, each Stockholder, severally and not jointly, agrees as follows:
(a) In connection with the closing of the purchase and sale contemplated under Section 2 of this Agreement (other than pursuant to the Offer), each Stockholder agrees to deliver, either to Sub or as directed by Parent, all certificates evidencing the Subject Shares held by such Stockholder, duly endorsed in blank for transfer, or accompanied by stock powers and such other documents as may be necessary in Parent's judgment to transfer record ownership of the Subject Shares to Sub or as directed by Parent.
(b) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(bc) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): each class thereof) against (i) any merger agreement, merger or other Acquisition Proposal (other than Alternative Transaction as such term is defined in Section 6.2 of the Merger Agreement and the Merger)Agreement, or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of any class of Company Common Stock, or (iii) any action that would cause the Company Common Stock (collectivelyto breach any representation, “Frustrating Transactions”) warranty or that would otherwise facilitate a Frustrating Transactioncovenant contained in the Merger Agreement. Subject to Section 12, the Stockholder further agrees not to enter into any agreement or take any action inconsistent with the foregoing.
(cd) Such The Stockholder shall not not, prior to the earliest of (i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its terms, (A) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any or all of such Subject Shares or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement the terms of the Offer or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (iiB) enter into any voting arrangement, directly or indirectly, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any of the Subject Shares, other than pursuant and the Stockholder agrees not to this Agreement. Nothing contained herein will be deemed commit or agree to restrict take any of the ability of any Stockholder foregoing actions.
(e) Subject to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or Section 12, during the plans under which they were granted.
(d) Subject to Section 11term of this Agreement, such the Stockholder shall not, and nor shall cause it permit any of its Stockholder Representatives (as defined below) not investment banker, financial advisor, attorney, accountant or other representative retained by it, to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate facilitate, any inquiries or encourage the submission making of any Acquisition Proposal, proposal that may lead to an Alternative Transaction or (ii) enter into or participate in any discussions or negotiations with, furnish regarding any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposalproposed Alternative Transaction. Without limiting the foregoing, it is agreed understood that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, financial advisor, attorney, accountant, consultant and any accountant or other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that Stockholder, whether or not such person is not a natural person, any purporting to act on behalf of such Stockholder’s Subsidiaries or any , shall be deemed to be a violation of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representativesthis Section 5(e) by such Stockholder.
(f) Such Stockholder agrees not to exercise or assertUntil the Effective Time, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate the Offer and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement.
(g) Such Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement. Each such beneficiary hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
(i) In the event that the Merger Agreement shall have been terminated under circumstances where Parent is or may become entitled to receive the Termination Fee, as defined in Section 7.7 of the Merger Agreement, each Stockholder shall pay to Parent on demand an amount equal to all profit determined in accordance with Section 5(h)(ii) of such Stockholder resulting from the consummation of any transaction which gives rise to the Company's obligation to pay the Termination Fee pursuant to the Merger Agreement.
(ii) For purposes of this Section 5(h), the profit of any Stockholder from any Alternative Transaction shall equal (A) the aggregate consideration that would have been received by such Stockholder pursuant to such Alternative Transaction if such Stockholder held the same number of Subject Shares at the consummation of such Alternative Transaction as he held at the time the Merger Agreement was terminated (including any consideration that would have been received in respect of any unexercised stock options or warrants or similar instruments held at the time the Merger Agreement was terminated), valuing any noncash consideration (including any residual interest in the Company) at its fair market value on the date of such consummation less (B) the per share cash consideration or the per share fair market value of the aggregate consideration that would have been issuable or payable to such Stockholder (assuming all stock options, warrants or similar instruments held by such Stockholder were exercised) if he had received the Merger Consideration pursuant to the Merger Agreement as originally executed (without giving effect to any increase in such Merger Consideration).
(iii) In the event that (x) prior to the Effective Time, an Alternative Transaction shall have been proposed and (y) the Effective Time of the Merger shall have occurred and Parent for any reason shall have increased the amount of Merger Consideration payable over that set forth in the Merger Agreement in effect on the date hereof (the "Merger Consideration"), each Stockholder shall pay to Parent on demand an amount in cash equal to the product of (i) the number of Subject Shares held by such Stockholder (assuming all stock options, warrants or similar instruments held by such Stockholder were exercised) and (ii) 100% of the excess, if any, of (A) the per share cash consideration or the per share fair market value of any noncash consideration, as the case may be, received by the Stockholder as a result of the Merger, as amended, determined as of the Effective Time of the Merger, over (B) the amount of the Original Merger Consideration determined as of the time of the first increase in the amount of the Original Merger Consideration.
(iv) For purposes of this Section 5(h), the fair market value of any noncash consideration consisting of:
(A) securities listed on a national securities exchange or traded on the NASDAQ/NMS shall be equal to the average closing price per share of such security as reported on such exchange or NASDAQ/NMS for the twenty trading days prior to the date of determination; and
(B) consideration which is other than cash or securities of the form specified in clause (A) of this Section 5(h)(iv) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by the parties within 10 business days of the event requiring selection of such banking firm; provided, however, that -------- ------- if the parties are unable to agree within two business days after the date of such event as to the investment banking firm, then the parties shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided -------- further, that the fees and expenses of such investment banking firm shall ------- be borne by Parent. The determination of the investment banking firm shall be final and binding upon the parties.
(v) Any payment of profit under this Section 5(h) shall (x) if paid in cash, be paid by wire transfer of same day funds to an account designated by Parent and (y) if paid through a transfer of securities (with the method and timing of such transfer to be mutually agreed), be paid as soon as practicable through delivery of such securities, suitably endorsed for transfer; provided that the Stockholder -------- shall be required to pay cash under this Section 5(h) only to the extent the fair market value of the securities transferred pursuant to clause (y) is less than such Stockholders' profit.
(i) If (i) immediately prior to the expiration of the Offer, Sub determines that the exercise of options, warrants or other instruments held by the Stockholders and the sale or tender into the Offer of Subject Shares acquired thereby either would cause the Minimum Condition to be satisfied or would cause Sub to own more than 90% of the outstanding Shares and (ii) Sub exercises its right to extend the Offer in accordance with the terms and conditions set forth in the Merger Agreement, then upon the request of Parent or Sub and the Exercise Loan (as defined below), each Stockholder shall promptly exercise all options, warrants and other instruments held by such Stockholder and sell the Subject Shares acquired thereby to Sub or tender such Subject Shares into the Offer (at such Stockholder's discretion, unless Sub directs that such Stockholder tender such Subject Shares). Upon delivery of such request, Parent shall lend to each Stockholder the amount necessary for such Stockholder to pay the aggregate exercise price in respect of all options, warrants and other instruments (each, an "Exercise Loan"). Each Exercise -------- ---- Loan shall be evidenced by a promissory note, shall bear interest at the applicable Federal rate (as defined in Section 7872 of the Internal Revenue Code of 1986, as amended) and shall be repaid together with accrued but unpaid interest upon the earlier of (i) the payment of the purchase price for the Subject Shares (whether pursuant to the Offer or otherwise) and (ii) the termination of this Agreement pursuant to Section 10.
Appears in 1 contract
Covenants of Each Stockholder. Each From and after the date hereof and until the termination of this Agreement in accordance with Section 8, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger, the Merger Agreement, the Merger Asset Purchase or any of the other transactions contemplated by the Merger Agreement, Asset Purchase Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitation) with respect to the Merger, the Merger Agreement, the Merger Asset Purchase or any of the other transactions contemplated by the Merger Asset Purchase Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger and the Asset Purchase, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the Asset Purchase Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Asset Purchase Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of a material amount of assets (other than the Asset Purchase Agreement and the Asset Purchase), reorganization, recapitalization, dissolution, liquidation or winding-up of or by the Company or any other takeover proposal (collectively, "Takeover Proposal"), (ii) any action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement, the Asset Purchase Agreement or this Agreement or (iii) (x) any material amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws, (y) any change in a majority of the persons who constitute the Board of Directors of the Company or (z) any other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment is intended or other proposal, action or transaction could reasonably be expected to prevent impede, frustrate, prevent, delay or impede or delay nullify (A) the consummation ability of the Company to consummate the Merger or the other transactions contemplated by the Merger Agreement Asset Purchase or the consummation (B) any of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, the Asset Purchase Agreement or change in the Merger Agreement. The Stockholder further agrees not to commit or agree to take any manner action inconsistent with the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transactionforegoing.
(c) Such Stockholder shall Each Stockholder, severally and not jointly, agrees not to (i) offer to sell, sell, transfer, encumber, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contractcontract, option or other arrangement with respect to or consent to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, therein to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of the Merger, (ii) except as contemplated hereby, grant any proxies or powers of attorney with respect to the Subject Shares, deposit any Subject Shares into a voting trust or enter into any voting arrangement with respect to the Subject Shares, or any interest in the foregoing, except with Parent or Sub, (iii) take any action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect or have the effect of preventing or disabling the Stockholder from performing such Stockholder's obligations under this Agreement or (iiiv) enter into commit or agree to take any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Each Stockholder hereby irrevocably waives any rights of appraisal or rights to dissent from the Merger that the Stockholder may have.
(e) Each Stockholder agrees with, and covenants to, Parent that the Stockholder shall not request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of the Subject Shares, unless such transfer is made in compliance with this Agreement. In the event of a stock dividend or distribution, or any change in the Common Stock by reason of any stock dividend or distribution, or any change in the Common Stock by reason of any stock dividend, split-up, recapitalization, combination, exchange of shares or the like, the term "Subject Shares" shall be deemed to Section 11refer to and include the Subject Shares as well as all such stock dividends and distributions and any shares into which or for which any or all of the Subject Shares may be changed or exchanged and the Purchase Price (as defined herein) shall be accordingly adjusted. Each Stockholder shall be entitled to receive any cash dividend paid by the Company during the term of this Agreement until the Subject Shares are cancelled in the Merger or purchased hereunder.
(f) Each Stockholder, severally and not jointly, shall not, nor shall it authorize or permit any partner, officer, director or employee of, or any investment banker, attorney or other advisor or representative of, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, Takeover Proposal or (ii) enter into or participate in any discussions discussions, conversations, negotiations or negotiations withother communications regarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way withway, assist or knowingly assist, participate in, facilitate or encourage any effort or attempt by any Third Party other person or entity, to seek to do any of the foregoing or take any other action to facilitate any inquiries or the making of any proposal that is seeking to makeconstitutes, or has madeis likely to lead to, an Acquisition any Takeover Proposal; provided, (iii) enter into any agreement in principlehowever, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting that the foregoing, it foregoing shall not restrict a Stockholder who is agreed that any violation also a director of the restrictions on Company from taking actions in such Stockholder set forth Stockholder's capacity as a director to the extent and in the preceding sentence circumstances permitted by a Stockholder Representative shall be a breach Section 4.02 of this Section by such the Merger Agreement. Each Stockholder. Upon execution of this Agreement, such Stockholder shallin its capacity as such, and it shall cause any of its Stockholder Representatives to, will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to takeTHE STOCKHOLDER HEREBY GRANTS TO, or cause to be takenAND APPOINTS SUB AND ANY DESIGNEE OF SUB, all actionsEACH OF THEM INDIVIDUALLY, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the MergerSTOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION OF THIS AGREEMENT) PROXY AND ATTORNEY-IN-FACT WITH FULL POWER OF SUBSTITUTION) TO VOTE THE SUBJECT SHARES OF STOCKHOLDER AS INDICATED IN SECTION 3(A) AND 3(B) ABOVE. THE STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION OF THIS AGREEMENT) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY STOCKHOLDER WITH RESPECT TO SUCH STOCKHOLDER'S SUBJECT SHARES.
Appears in 1 contract
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 10, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): each class thereof) against (i) any merger agreement, merger or other Acquisition Takeover 5 Proposal (other than as such term is defined in Section 6.02(a) of the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the each class of Company Common Stock (collectivelyStock. Subject to Section 12, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transactionthe Stockholder further agrees not to enter into any agreement inconsistent with the foregoing.
(c) Such The Stockholder shall not not, prior to the earliest of (A) the Effective Time and (B) the termination of the Merger Agreement in accordance with its terms, (i) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer transfer of, any or all of such Subject Shares or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement the terms of the Offer or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Takeover Proposal and agrees not to commit or Frustrating Transaction with respect agree to take any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject to the terms of Section 1112, such during the term of this Agreement, the Stockholder shall not, and nor shall cause it permit any of its investment banker or attorney retained by, or any other adviser or representative of, such Stockholder Representatives (as defined below) not to, directly or indirectly, (i) directly or indirectly solicit, initiate or take any action to facilitate or encourage the submission of of, any Acquisition Proposal, Takeover Proposal or (ii) enter into directly or indirectly participate in any discussions or negotiations withregarding, or furnish to any person any information relating with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal; provided, that it is understood that this clause (ii) will not be deemed to have been violated if in response to an unsolicited inquiry, the Stockholder states that it or he is subject to the Company or any provisions of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposalthis Agreement. Without limiting the foregoing, it is agreed understood that any violation of the 6 restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative an investment banker or attorney retained by, or other adviser or representative of, such Stockholder, whether or not such person is purporting to act on behalf of such Stockholder, shall be deemed to be a breach violation of this Section 4(d) by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to Until after the Merger Agreement, this Agreement, the Merger is consummated or any of the other transactions contemplated by the Merger Agreement or any of is terminated, the transactions contemplated by this Agreement without Stockholder shall, at the prior written consent expense of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement.
(f) Such Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement. Each such beneficiary hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
(i) In the event that the Merger Agreement shall have been terminated under circumstances where Parent is or may become entitled to receive the Termination Fee, each Stockholder shall pay to Parent on demand an amount equal to all profit determined in accordance with Section 4(g)(ii) of such Stockholder from the consummation of any transaction which gives rise to the Company's obligation to pay the Termination Fee pursuant to the Merger Agreement.
(ii) For purposes of this Section 4(g), the profit of any Stockholder from any Takeover Proposal shall equal (A) the aggregate consideration that would have been received by such Stockholder pursuant to such Takeover Proposal if such Stockholder held the same number of Subject Shares at the consummation of such Takeover Proposal as he held at the time the Merger Agreement was terminated (including any consideration that would have been received in respect of any unexercised stock options or warrants or similar instruments held at the time the Merger Agreement was terminated), valuing any noncash consideration 7 (including any residual interest in the Company) at its fair market value on the date of such consummation less (B) the fair market value of the aggregate consideration that would have been issuable or payable to such Stockholder (assuming all stock options, warrants or similar instruments held by such Stockholder were exercised) if he had received the Merger Consideration pursuant to the Merger Agreement as originally executed (without giving effect to any increase in such Merger Consideration).
(iii) In the event that (x) prior to the Effective Time, a Takeover Proposal shall have been made and (y) the Effective Time of the Merger shall have occurred and Parent for any reason shall have increased the amount of Merger Consideration payable over that set forth in the Merger Agreement in effect on the date hereof (the "Original Merger Consideration"), each Stockholder shall pay to Parent on demand an amount in cash equal to the product of (i) the number of Subject Shares of such Stockholder and (ii) 100% of the excess, if any, of (A) the per share cash consideration or the per share fair market value of any noncash consideration, as the case may be, received by the Stockholder as a result of the Merger, as amended, determined as of the Effective Time of the Merger, over (B) the amount of the Original Merger Consideration determined as of the time of the first increase in the amount of the Original Merger Consideration.
(iv) For purposes of this Section 4(g), the fair market value of any noncash consideration consisting of:
(A) securities listed on a national securities exchange or traded on the NASDAQ/NMS shall be equal to the average closing price per share of such security as reported on such exchange or NASDAQ/NMS for the twenty trading days prior to the date of determination; and
(B) consideration which is other than cash or securities of the form specified in clause (A) of this Section 4(g)(iv) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by the parties within 10 business days of the event requiring selection of such banking firm; provided, however, that if the parties are unable to agree within two business days after the date of such event as 8 to the investment banking firm, then the parties shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne by Parent. The determination of the investment banking firm shall be binding upon the parties.
(v) Any payment of profit under this Section 4(g) shall (x) if paid in cash, be paid by wire transfer of same day funds to an account designated by Parent and (y) if paid through a transfer of securities (with the method and timing of such transfer to be mutually agreed), be paid as soon as practicable through delivery of such securities, suitably endorsed for transfer; provided that the Stockholder shall be required to pay cash under this Section 4(g) only to the extent the fair market value of the securities transferred pursuant to clause (y) is less than such Stockholders' profit.
Appears in 1 contract
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 8, each Stockholder, severally and not jointly, agrees as follows:
(a) At Without in any way limiting the Stockholder's right to vote the Subject Shares in its sole discretion on any other matters that may be submitted to a stockholder vote, consent or other approval (including by written consent), at any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall shall, including by initiating a written consent solicitation if requested by Parent, vote (or cause to be voted) all the such Stockholder's Subject Shares of such Stockholder (owned of record or beneficiallyand each class thereof) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the such Stockholder's Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Company Acquisition (collectively, "Alternative Transactions") or (ii) any amendment of the Company’s Articles 's Certificate of Incorporation or Bylaws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholderssubsidiaries, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “"Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction").
(c) Such Stockholder shall not (i) transfertransfer (which term shall include, pledgewithout limitation, assignfor the purposes of this Agreement, tender any sale, gift, pledge or otherwise dispose of (including by gift) (collectively, “Transfer”other disposition), or consent to or permit any Transfer transfer of, any or all of such Stockholder's Subject Shares or any interest therein, or except pursuant to the Merger, (ii) enter into any Contractcontract, option or other agreement, arrangement or understanding with respect to the Transfer (including any profit sharing or other derivative arrangement) all of any such Subject Shares or any interest therein, (iii) grant any proxy, power-of-attorney or other authorization in or with respect to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of Shares, except for this Agreement or (iiiv) deposit such Shares into a voting trust or enter into any voting arrangement, whether by proxy, a voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction arrangement with respect to such Shares; provided, however, that any such Stockholder may transfer (as defined above) any of the Subject SharesShares to any other Stockholder who is on the date hereof, other than pursuant or to any family member of a Stockholder or beneficiary of a trust for which Stockholder is trustee or charitable institution which prior to the Stockholders Meeting and prior to such transfer becomes, a party to this Agreement. Nothing contained herein will be deemed to restrict Agreement bound by all the ability obligations of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted"Stockholder" hereunder.
(d) Such Stockholder hereby waives any rights of appraisal, or rights to dissent from the Merger, that such 5 Stockholder may have and hereby irrevocably agrees to make a Stock Election with respect to at least 85% of such Stockholder's Subject to Section 11Shares.
(e) During the term of this Agreement, such the Stockholder shall not, and nor shall cause it authorize or permit any officer, director, partner, employee or agent or any investment banker, attorney or other advisor or representative of its the Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, Takeover Proposal or (ii) enter into or participate in any discussions or negotiations withregarding, or furnish to any person any information relating with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Takeover Proposal. The foregoing sentence shall not prohibit the Stockholder from taking any action that would be permitted under Section 4.02 of the Merger Agreement and in no event shall the Stockholder be liable for any action taken by the Company or any of its Subsidiaries to, otherwise cooperate the Stockholder in any way compliance with, or knowingly assistthat would be permitted under, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter Section 4.02 of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement; provided, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication however that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder this sentence shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to limit the Merger Agreement, this Agreement, the Merger or any obligations of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of ParentStockholder under Sections 3(a), except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i3(b) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder 3(j) and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives4 hereof.
(f) Such Stockholder agrees not to exercise Until after the Merger is consummated or assertthe Merger Agreement is terminated, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious expeditions manner practicable, the MergerMerger and the other transactions contemplated by the Merger Agreement. The foregoing sentence shall not prohibit the Stockholder from taking any action that would be permitted under Section 4.02 of the Merger Agreement and in no event shall the Stockholder be liable for any action taken by the Company or the Stockholder in compliance with, or that would be permitted under, Section 4.02 of the Merger Agreement; provided, however that this sentence shall not limit the obligations of the Stockholder under Sections 3(a), 3(b) and 3(j) and 4 hereof.
(g) If, at the time the Merger Agreement is submitted for approval to the stockholders of the Company, a Stockholder is an "affiliate" of the Company for purposes of Rule 145 under the Securities Act, such Stockholder shall deliver to Parent on or prior to the Closing Date a written agreement substantially in the form attached as Exhibit A to the Merger Agreement.
(h) The Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke, terminate or amend such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement, including withdrawing any Subject Shares from such trust or replacing any trustees of such trust. The Stockholder, on behalf of each such beneficiary, hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
(i) Each Stockholder shall cause this Agreement to be filed with the Secretary of the Company.
(i) In the event that the Merger Agreement shall have been terminated under circumstances where Parent is or may become entitled to receive the Termination Fee, each Stockholder shall pay to Parent on demand an amount equal to all profit (determined in accordance with Section 3(j)(ii)) of such Stockholder from the consummation of (A) any Company Acquisition consummated within 12 months following the termination of the Merger Agreement pursuant to Section 7.01(b)(iv) thereof or (B) any Company Acquisition that results in the Company being obligated to pay the Termination Fee in accordance with the Merger Agreement.
(ii) For purposes of this Section 3(j), the profit of any Stockholder from any Company Acquisition shall equal (A) the aggregate consideration received by such Stockholder pursuant to such Company Acquisition, valuing any non-cash consideration (including any residual interest in the Company) at its fair market value on the date of such consummation plus (B) the fair market value, on the date of disposition, of all Subject Shares of such Stockholder disposed of after the termination of the Merger Agreement and prior to the date of such consummation less (C) the fair market value of the aggregate consideration that would have been issuable or payable to such Stockholder if such Stockholder had received the Merger Consideration set forth in the Merger Agreement in effect on the date hereof (the "Original Merger Consideration"), valued as of the close of business on the last full trading day prior to the first public announcement by the Company of its intention to terminate the Merger Agreement as if the Merger had been consummated on the date of such public announcement. In addition, it is agreed that for purposes of this Section 3(j), the profit of any Stockholder from any Company Acquisition shall be net of any taxes paid or payable by Stockholder in respect of or otherwise attributable to such profit (after taking into account the present value of any tax benefits in respect of or otherwise attributable to any payment of such profit pursuant to Section 3(j)(i)); it being understood that any such Stockholder shall deliver to Parent a written opinion of a nationally recognized accounting firm as to the amount of any such net tax adjustments at the time of the payment of any profits pursuant to Section 3(j)(i).
(iii) For purposes of this Section 3(j), the fair market value of any non-cash consideration consisting of:
(A) securities listed on a national securities exchange or traded on the Nasdaq Stock Market shall be equal to the average closing price per share of such security as reported on such exchange or Nasdaq Stock Market for the five trading days before the date of determination; and
(B) consideration that is other than cash or securities of the form specified in clause (A) of this Section 3(j)(iii) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by Parent and the Stockholders within 10 business days of the event requiring selection of such banking firm; provided, however, that if Parent and the -------- ------- Stockholders are unable to agree within two business days after the date of such event as to the investment banking firm, then Parent and the Stockholders shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne equally by Parent, on the one hand, and the Stockholders, on the other hand. The determination of the investment banking firm shall be binding upon the parties.
(iv) Any payment of profit under this Section 3(j) shall be paid in the same form as the consideration received from the Company Acquisition or disposition (and, if the consideration received from the Company Acquisition or disposition was received in more than one form, in the same proportion as the forms of consideration received) and (x) to the extent paid in cash, shall be paid by wire transfer of same day funds to an account designated by Parent and (y) to the extent paid through a transfer of securities, shall be paid through delivery of such securities, suitably endorsed for transfer.
Appears in 1 contract
Samples: Stockholder Agreement (International Business Machines Corp)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees during the term of this Agreement as follows:
(a) At any meeting of the stockholders of the Company HD called to vote upon the Merger Agreement, or the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall shall, including by executing a written consent solicitation if requested by Netword, vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) of the adoption by HD of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company HD or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all of the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), ) any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger or other Acquisition Proposal or transaction or occurrence which if proposed and offered to HD or its stockholders (other than the Merger Agreement and the Merger), or any of them) would be an Acquisition Proposal or (ii) any amendment of the Company’s Articles HD's Certificate of Incorporation (including the Certificate of Designations of each of the Series A Preferred, Series B Preferred and Series C Preferred) or Bylaws or other proposalproposal (including an Acquisition Proposal), action or transaction involving the Company HD or any of its Subsidiaries subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could would reasonably be expected to prevent or impede prevent, impede, interfere with, hinder or delay the consummation of the Merger or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “"Frustrating Transactions”"). For the avoidance of doubt, nothing in this Section 3(b) shall be construed to prohibit, restrict or that would otherwise facilitate a Frustrating Transactionlimit the Stockholders from voting in favor of an amendment to the Certificate of Incorporation of HD to effect the HD Split.
(c) Such Other than in accordance with the terms of this Agreement, such Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, therein or enter into any Contractcontract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of with respect to the Transfer of, any Subject Shares or any interest therein, therein to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction otherwise with respect to any the Subject Shares, . Such Stockholder shall not commit or agree to take any action inconsistent with the foregoing. Notwithstanding any other than pursuant to provision of this Agreement. Nothing contained herein will be deemed to restrict the ability of any , each Stockholder to exercise any Company Stock Options in may Transfer all or a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms portion of such Company Stock Option or Stockholder's Subject Shares to any other person if such transferee expressly agrees in writing to be bound by all of the plans under which they were grantedprovisions of this Agreement.
(d) Subject to Section 11From and after the date of this Agreement, such each Stockholder shall not, and shall cause not authorize or permit any of its Stockholder Representatives (as defined below) not subsidiaries or any of its or their directors, officers, employees, investment bankers, financial advisors, attorneys, accountants or other representatives to, directly or indirectly, (i) solicit, initiate initiate, encourage (including by way of furnishing information), or take any other action designed to facilitate facilitate, any inquiries or encourage the submission making of any Acquisition Proposalproposal that constitutes a Frustrating Transaction, (ii) enter into any agreement with respect to any Frustrating Transaction or (iii) participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by regarding a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestFrustrating Transaction.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Samples: Voting Agreement (Netword Inc)
Covenants of Each Stockholder. Each StockholderStockholder hereby, ----------------------------- severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, in each case after such time as Merger Subsidiary has purchased the Subject Shares of each Stockholder hereunder, and only if the record date for any such vote precedes the date of the sale of such Subject Shares to Merger Subsidiary, each Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder, including by executing a written consent solicitation if requested by Buyer or Merger Subsidiary, in respect of which such Stockholder (owned of record then has or beneficially) entitled to vote thereon exercises voting control in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a votesuch Stockholder's votes, consent, adoption consents or other approval (including by written consent solicitation) is approvals are sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned in respect of record which such Stockholder then has or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): exercises voting control against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Acquisition Proposal and (ii) any amendment of the Company’s Articles 's articles of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholderssubsidiaries, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to prevent impede, frustrate, prevent, delay or impede or delay nullify the consummation of Offer, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of any class of common stock or other voting securities of the Company Common Stock (collectively, “Frustrating Transactions”) Company. The Stockholder further agrees not to commit or that would otherwise facilitate a Frustrating Transactionagree to take any action or enter into any agreement inconsistent with the foregoing.
(c) Such Except for Xxxxxxx Xxxxxxx'x obligations to Xxxxx X. Xxxxxx as set forth on the signature page attached hereto, such Stockholder shall not (i) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any or all of the -------- Subject Shares of such Stockholder or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, to any Person person other than Merger Subsidiary or Merger Subsidiary's designee pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement the Offer or the Merger or otherwise to Merger Subsidiary in accordance with Section 1 (other than any Transfer pursuant to the laws of descent or distribution) or (ii) enter into any other voting arrangement, whether by proxy, voting agreement agreement, voting trust, power-of-attorney or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any the Subject Shares, other than pursuant . Such Stockholder shall not commit or agree to this Agreement. Nothing contained herein will be deemed to restrict take any of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject to Section 11Neither such Stockholder nor any of its officers, directors or employees shall, and such Stockholder shall not, and shall use its reasonable best efforts to cause any investment banker, financial advisor, attorney, accountant or other representative of its any such Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate facilitate, any inquiries or encourage the submission making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish regarding any information relating to the Company Acquisition Proposal or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Such Stockholder promptly shall advise Buyer and Merger Subsidiary orally and in writing of the foregoing. To the same extent required by the Company pursuant to, and subject any Acquisition Proposal or inquiry made to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her with respect to or its capacity as such (or its Stockholder Representative) of that could lead to any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an the identity of the person making such Acquisition Proposal to or inquiry (if such Stockholder in his, her or its capacity as such or identification is not prohibited by the terms of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an the Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, Proposal) and the material terms and conditions of, of any such Acquisition ProposalProposal or inquiry. The foregoing provisions of this paragraph (d) shall not, indication however, prohibit an individual Stockholder, or requestany partner, stockholder, officer or affiliate of a Stockholder that is a legal entity, who is a director of the Company from performing his or her legally required fiduciary duties as a director of the Company as permitted or required under the Merger Agreement.
(e) Such Stockholder shall not hereby consents to and shall not permit any approves the actions taken by the Board of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to Directors of the Company in approving the Merger Agreement, this Agreement, the Merger or any of and the other transactions contemplated by the Merger Agreement for purposes of ensuring that the restrictions on business combinations set forth in Parts 2 and 3 of Article 11 of the Georgia Code and in the Bylaws of the Company do not, and will not, apply to this Agreement, the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable lawthereby. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder hereby waives, and agrees not to exercise or assert, any dissenters’ or similar appraisal rights under Section 262 Article 13 of the Delaware Law or other applicable law Georgia Code in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment or postponement thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(bi) At any meeting of the stockholders of the Company or at any adjournment or postponement thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause the Subject Shares of such Stockholder not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (iA) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, business combination, sale of substantial assets, joint venture, binding share exchange, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (iiB) any amendment of the Company’s Articles Second Restated Certificate of Incorporation or Bylaws Restated By-laws or other proposal, action or transaction involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction would, or could reasonably be expected to prevent to, prevent, impede, interfere with, hinder, frustrate, delay or impede or delay nullify the Merger Agreement, the consummation of the Merger or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”).
(ii) Such Stockholder shall, within five Business Days of a request from Parent, irrevocably grant to, and appoint, Parent and individuals designated by Parent in such request, or any of them, and any individual designated in writing by any of them, and each of them individually, as such Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder, to vote the Subject Shares of such Stockholder, or grant a consent or approval in respect of the Subject Shares of such Stockholder, in a manner consistent with this Section 3. Such Stockholder understands and acknowledges that would otherwise facilitate a Frustrating TransactionParent is entering into the Merger Agreement in reliance upon such Stockholder’s execution and delivery of this Agreement (including this agreement to execute and deliver such irrevocable proxy). Such Stockholder hereby affirms, and shall affirm in such irrevocable proxy, that such irrevocable proxy is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Stockholder under this Agreement. Such Stockholder hereby further affirms, and shall affirm in such irrevocable proxy, that such irrevocable proxy is coupled with an interest and may under no circumstances be revoked other than by termination of this Agreement in accordance with it terms. Such irrevocable proxy shall provide that such Stockholder ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue thereof, that such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the DGCL and that such irrevocable proxy shall automatically terminate upon the termination of this Agreement in accordance with its terms.
(c) Such Other than as expressly permitted by this Agreement, such Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift, bequest, appointment or otherwise) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangements) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person person (other than pursuant to this Agreement or than, if the transactions contemplated by the Merger AgreementAgreement are consummated, unless prior to any such Transfer by operation of law in the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or Merger), (ii) enter into any voting arrangementarrangement with respect to any Subject Shares, whether by proxy, voting agreement or otherwiseotherwise or (iii) take any action which would, or could reasonably be expected to, result in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to a diminution of the voting power represented by any Subject Shares, other than pursuant and shall not commit or agree to this Agreement. Nothing contained herein will be deemed to restrict take any of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject to Section 11, such Such Stockholder shall not, and nor shall cause such Stockholder authorize or permit any of its Stockholder Representatives affiliates (as defined belowother than the Company) not or any of its or their directors, officers, employees, partners, investment bankers, attorneys or other advisors or representatives to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action to facilitate facilitate, any inquiries with respect to a potential Takeover Proposal or encourage Frustrating Transaction or the submission of any Acquisition ProposalTakeover Proposal or Frustrating Transaction, (ii) enter into any agreement with respect to any Takeover Proposal or Frustrating Transaction or (iii) except as expressly permitted by Section 9, enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, or knowingly assist, assist or participate in, facilitate or encourage in any effort or attempt by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives person with respect to, immediately cease any and all existing activities, discussions Takeover Proposal or negotiations with any parties conducted heretofore with respect to any of the foregoingFrustrating Transaction. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Such Stockholder promptly shall notify advise Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify of any Takeover Proposal or Frustrating Transaction or inquiry made to such Stockholder with respect to or that could reasonably be expected to lead to a Takeover Proposal or Frustrating Transaction, the Third Party makingidentity of the person making or initiating any such Takeover Proposal, Frustrating Transaction or inquiry and the material terms and conditions of, of any such Acquisition Takeover Proposal, indication Frustrating Transaction or requestinquiry. Such Stockholder shall keep Parent fully informed of the status and details (including amendments or proposed amendments) of any such Takeover Proposal, Frustrating Transaction or inquiry.
(e) Such Stockholder shall not and not, nor shall not such Stockholder authorize or permit any of its Stockholder Representatives affiliates (other than the Company) or any of its or their directors, officers, employees, partners, investment bankers, attorneys or other advisors or representatives to, directly or indirectly, issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by this Agreement or the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder hereby waives any rights of appraisal, or rights to dissent from the Merger, that such Stockholder may have, and agrees not to exercise commence or assertparticipate in, and to take all actions necessary to opt out of any class in any class action with respect to, any dissenters’ claim, derivative or similar rights under Section 262 otherwise, against the Company (or any of its respective successors) relating to the negotiation, execution and delivery of this Agreement or the Merger Agreement or the consummation of the Delaware Law Merger or any of the other applicable law in connection with transactions contemplated by this Agreement or the MergerMerger Agreement.
(g) Such (i) In the event that the Merger Agreement shall have been terminated under circumstances where Parent is or may become entitled to receive the Termination Fee, such Stockholder shall use pay to Parent on demand an amount equal to all reasonable efforts to takeprofit (determined in accordance with Section 3(g)(ii)) of such Stockholder from the consummation of any Takeover Proposal that is consummated, or cause with respect to which an Acquisition Agreement was entered into, within 15 months after such termination. Any payment of profit under this Section 3(g)(i) shall be takenpaid in the same form as the consideration received from the Takeover Proposal (and, all actions, and to do, or cause to be done, and to assist and cooperate with Parent if the consideration so received was in doing, all things necessary, proper or advisable to consummate and make effectivemore than one form, in the most expeditious manner practicablesame proportion as the forms of consideration so received).
(ii) For purposes of Section 3(g)(i), the profit of any Stockholder from any Takeover Proposal shall equal (A) the aggregate consideration received by such Stockholder pursuant to such Takeover Proposal, valuing any non-cash consideration (including any residual interest in the Company) at its fair market value as of the date of such consummation plus (B) the fair market value, as of the date of disposition, of all Subject Shares of such Stockholder disposed of after the termination of the Merger Agreement and prior to the date of such consummation less (C) the aggregate consideration that would have been issuable or payable to such Stockholder if he or she had received the Merger Consideration pursuant to the Merger Agreement as executed on the date hereof, valuing each Parent ADS at its fair market value as of the date of first public announcement by the Company of its intention to terminate the Merger Agreement as if the Merger had been consummated on the date of such public announcement.
(iii) In the event that (A) prior to the Effective Time, a Takeover Proposal shall have been made and (B) the Effective Time of the Merger shall have occurred and Parent for any reason shall have increased the amount of Merger Consideration payable over that set forth in the Merger Agreement as executed on the date hereof (on a per share basis, the “Original Merger Consideration”), such Stockholder shall pay to Parent on demand an amount equal to the product of (1) the number of Subject Shares of such Stockholder and (2) the excess of (x) the per share cash consideration or the per share fair market value of any non-cash consideration, as the case may be, received by such Stockholder as a result of the Merger determined as of the Effective Time of the Merger, over (y) the fair market value of the Original Merger Consideration determined as of the date of the first increase in the amount of the Original Merger Consideration. Any payment under this Section 3(g)(iii) shall be paid in the same form as the Merger Consideration received by such Stockholder as a result of the Merger (and, if the consideration so received was in more than one form, in the same proportion as the forms of consideration so received).
(iv) For purposes of this Section 3(g), the fair market value of any non-cash consideration consisting of:
(A) securities listed on a national securities exchange or traded on the Nasdaq National Market of The Nasdaq Stock Market, Inc. (“Nasdaq National Market”) shall be equal to the average closing price per share of such security as reported on such exchange or Nasdaq National Market for the five trading days prior to the date of determination; and
(B) consideration which is other than cash or securities of the type specified in clause (A) of this Section 3(g)(iv) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by the parties within 10 Business Days of the event requiring selection of such banking firm; provided, however, that if the parties are unable to agree within two Business Days after the date of such event as to the investment banking firm, then Parent, on the one hand, and the Stockholders, on the other hand, shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne equally by Parent, on the one hand, and the Stockholders, on the other hand. The determination of investment banking firm shall be binding upon the parties.
(v) Any payment of profit under Section 3(g)(i) or of amounts under Section 3(g)(iii) shall (A) if payable in cash, be paid by wire transfer of same day funds to an account designated by Parent and (B) if payable through a transfer of securities, be paid through delivery of such securities, suitably endorsed for transfer.
Appears in 1 contract
Samples: Stockholders Agreement (Collateral Therapeutics Inc)
Covenants of Each Stockholder. Each StockholderUntil the termination of this ----------------------------- Agreement in accordance with Section 7, each Stockholder severally and not jointly, jointly agrees as follows:
(a) At any meeting of the stockholders Stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement (as it may be amended from time to time, provided that such amendment is not materially adverse to such Stockholder) and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement Agreement. Any vote cast in accordance with this Section 3(a) or in accordance with Section 3(b) shall be cast in such manner as will insure that such vote is duly counted for purposes of determining whether a quorum is present and (ii) any other matter intended to facilitate for purposes of determining the consummation result of the transactions contemplated by the Merger Agreementsuch vote.
(bi) At any meeting of the stockholders Stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder against (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (iA) any merger agreement, merger or other - Acquisition Proposal (other than as such term is defined in Section 7.1(a) of the Merger Agreement and the Merger), or (iiB) any amendment of the Company’s Articles 's certificate of Incorporation - incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement (as it may be amended from time to time, provided such amendment is not materially adverse to such Stockholder), or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Common Stock. The Stockholder further agrees not to enter into any agreement inconsistent with the foregoing.
(ii) At any meeting of Stockholders of the Company Common or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares (A) in favor of any - proposal approving any of the transactions contemplated by the Asset and Subsidiary Stock Option Agreement (collectivelythe "Option Agreement"), “Frustrating Transactions”dated the date ---------------- hereof, between the Company and Purchaser, and (B) against any proposal or - transactions that would otherwise facilitate a Frustrating Transactionbe reasonably likely to impede, frustrate, prevent or nullify the Option Agreement or any transactions contemplated thereby.
(c) Such The Stockholder shall not not, prior to the earliest of (i) the - Effective Time and (ii) the termination of the Merger Agreement in -- accordance with its terms, (x) sell, transfer, give, pledge, assign, tender assign or - otherwise dispose of (including by gift) (collectively, “"Transfer”"), or -------- consent to or permit any Transfer of, any or all of such Stockholder's Subject Shares or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement the Merger or (iiy) enter into any voting arrangement, whether by - proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal and agrees not to commit or Frustrating Transaction with respect agree to take any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject In the event that Purchaser, Merger Sub or any affiliate thereof commences a tender offer for all or any portion of the Common Stock at a purchase price per share equal to Section 11or greater than the Merger Consideration, such Stockholder shall not, validly tender such Stockholder's Subject Shares and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders withdraw Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestso tendered.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to Until after the Merger Agreement, this Agreement, the Merger is consummated or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used hereinis terminated, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the MergerMerger and the other transactions contemplated by the Merger Agreement (as it may be amended from time to time, provided such amendment is not materially adverse to such Stockholder).
(f) Such Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement. Each such beneficiary hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
Appears in 1 contract
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 10, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): each class thereof) against (i) any merger agreement, merger or other Acquisition Takeover Proposal (other than as such term is defined in Section 6.02(a) of the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the each class of Company Common Stock (collectivelyStock. Subject to Section 12, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transactionthe Stockholder further agrees not to enter into any agreement inconsistent with the foregoing.
(c) Such The Stockholder shall not not, prior to the earliest of (A) the Effective Time and (B) the termination of the Merger Agreement in accordance with its terms, (i) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer transfer of, any or all of such Subject Shares or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement the terms of the Offer or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Takeover Proposal and agrees not to commit or Frustrating Transaction with respect agree to take any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject to the terms of Section 1112, such during the term of this Agreement, the Stockholder shall not, and nor shall cause it permit any of its investment banker or attorney retained by, or any other adviser or representative of, such Stockholder Representatives (as defined below) not to, directly or indirectly, (i) directly or indirectly solicit, initiate or take any action to facilitate or encourage the submission of of, any Acquisition Proposal, Takeover Proposal or (ii) enter into directly or indirectly participate in any discussions or negotiations withregarding, or furnish to any person any information relating with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal; provided, that it is understood that this clause (ii) will not be deemed to have been violated if in response to an unsolicited inquiry, the Stockholder states that it or he is subject to the Company or any provisions of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposalthis Agreement. Without limiting the foregoing, it is agreed understood that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative an investment banker or attorney retained by, or other adviser or representative of, such Stockholder, whether or not such person is purporting to act on behalf of such Stockholder, shall be deemed to be a breach violation of this Section 4(d) by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to Until after the Merger Agreement, this Agreement, the Merger is consummated or any of the other transactions contemplated by the Merger Agreement or any of is terminated, the transactions contemplated by this Agreement without Stockholder shall, at the prior written consent expense of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement.
(f) Such Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement. Each such beneficiary hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
(i) In the event that the Merger Agreement shall have been terminated under circumstances where Parent is or may become entitled to receive the Termination Fee, each Stockholder shall pay to Parent on demand an amount equal to all profit determined in accordance with Section 4(g)(ii) of such Stockholder from the consummation of any transaction which gives rise to the Company's obligation to pay the Termination Fee pursuant to the Merger Agreement.
(ii) For purposes of this Section 4(g), the profit of any Stockholder from any Takeover Proposal shall equal (A) the aggregate consideration that would have been received by such Stockholder pursuant to such Takeover Proposal if such Stockholder held the same number of Subject Shares at the consummation of such Takeover Proposal as he held at the time the Merger Agreement was terminated (including any consideration that would have been received in respect of any unexercised stock options or warrants or similar instruments held at the time the Merger Agreement was terminated), valuing any noncash consideration (including any residual interest in the Company) at its fair market value on the date of such consummation less (B) the fair market value of the aggregate consideration that would have been issuable or payable to such Stockholder (assuming all stock options, warrants or similar instruments held by such Stockholder were exercised) if he had received the Merger Consideration pursuant to the Merger Agreement as originally executed (without giving effect to any increase in such Merger Consideration).
(iii) In the event that (x) prior to the Effective Time, a Takeover Proposal shall have been made and (y) the Effective Time of the Merger shall have occurred and Parent for any reason shall have increased the amount of Merger Consideration payable over that set forth in the Merger Agreement in effect on the date hereof (the "Original Merger Consideration"), each Stockholder shall pay to Parent on demand an amount in cash equal to the product of (i) the number of Subject Shares of such Stockholder and (ii) 100% of the excess, if any, of (A) the per share cash consideration or the per share fair market value of any noncash consideration, as the case may be, received by the Stockholder as a result of the Merger, as amended, determined as of the Effective Time of the Merger, over (B) the amount of the Original Merger Consideration determined as of the time of the first increase in the amount of the Original Merger Consideration.
(iv) For purposes of this Section 4(g), the fair market value of any noncash consideration consisting of:
(A) securities listed on a national securities exchange or traded on the NASDAQ/NMS shall be equal to the average closing price per share of such security as reported on such exchange or NASDAQ/NMS for the twenty trading days prior to the date of determination; and
(B) consideration which is other than cash or securities of the form specified in clause (A) of this Section 4(g)(iv) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by the parties within 10 business days of the event requiring selection of such banking firm; provided, however, that if the parties are unable to agree within two business days after the date of such event as to the investment banking firm, then the parties shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided further, that the fees and expenses of such investment banking firm shall be borne by Parent. The determination of the investment banking firm shall be binding upon the parties.
(v) Any payment of profit under this Section 4(g) shall (x) if paid in cash, be paid by wire transfer of same day funds to an account designated by Parent and (y) if paid through a transfer of securities (with the method and timing of such transfer to be mutually agreed), be paid as soon as practicable through delivery of such securities, suitably endorsed for transfer; provided that the Stockholder shall be required to pay cash under this Section 4(g) only to the extent the fair market value of the securities transferred pursuant to clause (y) is less than such Stockholders' profit.
Appears in 1 contract
Samples: Stockholder Agreement (Chase Venture Capital Associates L P)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, agrees agrees, subject to the terms and conditions of this Agreement, as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the his or its Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated adoption by the Merger Agreement and (ii) any other matter intended to facilitate the consummation Company of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the his or its Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreementALTERNATIVE TRANSACTION, merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock Stock, or (collectively, “Frustrating Transactions”iii) or any action that would otherwise facilitate a Frustrating Transactioncause the Company to breach any representation, warranty or covenant contained in the Merger Agreement. Subject to Section 10, the Stockholder further agrees not to enter into any agreement or take any action inconsistent with the foregoing.
(c) Such Stockholder shall not not, prior to the earliest of (i) the EFFECTIVE TIME and (ii) the termination of this Agreement in accordance with its terms, (A) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, -------- any or all of his or its Subject Shares or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing of, his or other derivative arrangement) of any its Subject Shares or any interest therein, to any Person other than pursuant person (unless such person agrees in writing to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee be bound by all of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement and written notice of such Transfer is given promptly to Investor) other than pursuant to the terms of the Merger or (iiB) enter into any voting arrangement, directly or indirectly, whether by proxy, voting agreement or otherwise, in connection with, directly respect of his or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any its Subject Shares, other than pursuant and such Stockholder agrees not to this Agreement. Nothing contained herein will be deemed commit or agree to restrict take any of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject to the terms of Section 1110, during the term of this Agreement, such Stockholder shall not, and nor shall cause it permit any of its Stockholder Representatives (as defined below) not investment banker, financial advisor, attorney, accountant or other representative retained by it, to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate facilitate, any inquiries or encourage the submission making of any Acquisition Proposal, proposal that may lead to an Alternative Transaction or (ii) enter into or participate in any discussions or negotiations with, furnish regarding any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestproposed Alternative Transaction.
(e) Such Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not and shall not permit take any of its Stockholder Representatives to, directly action to revoke or indirectly, issue any press release terminate such trust or make take any other public statement with respect to the Merger Agreementaction which would restrict, this Agreement, the Merger limit or frustrate in any of the other transactions contemplated by the Merger Agreement or any of way the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representativesAgreement.
(f) Such Stockholder agrees not that he or it shall complete and deliver the Election Form to exercise or assert, any dissenters’ or similar rights under Section 262 the Paying Agent prior to the expiration of the Delaware Law or other applicable law in connection Election Date and, pursuant to such Election Form, the Stockholder, after consultation with the Merger.
Investor, shall elect to retain such number of Shares that, after giving effect to the proration set forth in Section 2.3 of the Merger Agreement, will cause such Stockholder to retain (gi) Such Stockholder shall use 50% of such Stockholder's Shares plus (ii) any Warrants plus (iii) the number of 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 Parent in doing, all things necessary, proper or advisable to consummate and make effectiveShares issued upon the exercise of any Warrants, in lieu of such Shares being converted into the most expeditious manner practicable, right to receive the MergerCash Merger Price for each Share.
Appears in 1 contract
Covenants of Each Stockholder. Each Until the earlier of the Closing Date and the termination of this Agreement in accordance with Section 8, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company Parent or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): each class thereof) against (i) any merger agreementAlternative Transaction, merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles Parent's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersParent, which amendment or other proposal, action proposal or transaction could reasonably be expected to impede, frustrate, prevent or impede nullify the Purchase Agreement, the Related Documents or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation any of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, thereby or change in any manner the voting rights of any class of Parent's capital stock, or (iii) any action that could cause Parent to breach any representation, warranty or covenant contained in the Company Common Stock (collectively, “Frustrating Transactions”) Purchase Agreement or that would otherwise facilitate a Frustrating Transactionthe Related Documents. The Stockholder further agrees not to enter into any agreement or take any action inconsistent with the foregoing.
(cb) Such The Stockholder shall not (iA) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any or all of such Subject Shares or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (iiB) enter into any voting arrangement, directly or indirectly, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any of the Subject Shares, other than pursuant and the Stockholder agrees not to this Agreement. Nothing contained herein will be deemed commit or agree to restrict take any of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(dc) Subject to Section 11The Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate revoke or encourage the submission of terminate such trust or take any Acquisition Proposalother action which would restrict, (ii) enter into limit or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate frustrate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used hereinAgreement, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant Purchase Agreement or the Related Documents. Each such beneficiary hereby acknowledges and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and bound by the terms of this Agreement applicable to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Mergerit.
Appears in 1 contract
Covenants of Each Stockholder. Each StockholderStockholder hereby, severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, in each case after such time as Purchaser has purchased the Subject Shares of each Stockholder hereunder, and only if the record date for any such vote precedes the date of the sale of such Subject Shares to Purchaser, each Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder, including by executing a written consent solicitation if requested by Parent or Purchaser, in respect of which such Stockholder (owned of record then has or beneficially) entitled to vote thereon exercises voting control in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a votesuch Stockholder's votes, consent, adoption consents or other approval (including by written consent solicitation) is approvals are sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned in respect of record which such Stockholder then has or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): exercises voting control against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, business combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company (in each case except as contemplated by the Merger Agreement, including by the Interim Business Plan) or any other Acquisition Proposal and (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholderssubsidiaries, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to prevent impede, frustrate, prevent, delay or impede or delay nullify the consummation of Offer, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of any class of common stock or other voting securities of the Company Common Stock (collectively, “Frustrating Transactions”) Company. The Stockholder further agrees not to commit or that would otherwise facilitate a Frustrating Transactionagree to take any action or enter into any agreement inconsistent with the foregoing.
(c) Such Stockholder shall not (i) sell, transfer, give, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any or all of the Subject Shares of such Stockholder or any interest therein, therein or enter into any Contractcontract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of any of, the Subject Shares or any interest therein, to any Person person other than Parent, Purchaser or another permitted purchaser pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this the Merger Agreement or otherwise to Purchaser in accordance with Sections 1 or 2 (other than any Transfer pursuant to the laws of descent or distribution) or (ii) enter into any other voting arrangement, whether by proxy, voting agreement agreement, voting trust, power-of-attorney or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any the Subject Shares, other than pursuant . Such Stockholder shall not commit or agree to this Agreement. Nothing contained herein will be deemed to restrict take any of the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedforegoing actions.
(d) Subject Such Stockholder hereby consents to Section 11, such Stockholder shall not, and shall cause any approves the actions taken by the Board of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission Directors of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, approving the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of and the other transactions contemplated by the Merger Agreement for purposes of ensuring that any restrictions on business combinations set forth in the DGCL and applicable to the Company and/or in the Bylaws of the Company do not, and will not, apply to this Agreement, the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable lawthereby. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder hereby waives, and agrees not to exercise or assert, any dissenters’ or similar appraisal rights under Section 262 of the Delaware Law or other applicable law DGCL in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder, acting as a stockholder of the Company and not as an officer or director of the Company, severally and not jointly, agrees as follows:
(a) At Without in any way limiting each Stockholder’s right to vote its Subject Shares in its sole discretion with respect to any other matters, at any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall shall, including by executing a written consent if requested by Parent, vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder’s vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, business combination, recapitalization, liquidation, dissolution, joint venture, binding share exchange, sale of substantial assets reorganization, or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company’s Articles of Incorporation Company Certificate or Bylaws Amended and Restated By-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede nullify, or delay the consummation result in a breach of any covenant, representation or warranty or any other obligation of the Company under or with respect to, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) Stock. The Stockholder shall not commit or that would otherwise facilitate a Frustrating Transactionagree to take any action inconsistent with the foregoing.
(c) Such The Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of of, any Subject Shares (or any interest therein, ) to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, Shares other than pursuant to this AgreementAgreement and shall not commit or agree to take any of the foregoing actions. The Stockholder shall not, nor shall such Stockholder permit any entity under such Stockholder’s control to, deposit any Subject Shares in a voting trust. Nothing contained herein will in this Section 3(c) shall prohibit any sale, transfer or assignment of Subject Shares by a Stockholder that is a natural person to members of such Stockholder’s family, a family trust of such Stockholder or a charitable institution or, by a Stockholder that is a family trust to a grantor or a beneficiary of that trust, if, in each case, the transferee of such Subject Shares agrees in writing to be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under bound by the terms hereof and notice of such Company Stock Option sale, transfer or assignment, including the plans under which they were grantedname and address of the purchaser, transferee or assignee, is delivered to Parent prior to such sale, transfer or assignment.
(d) Subject to Section 11, such The Stockholder shall not, and nor shall cause it authorize or permit (to the extent that it has the power not to permit) any of its employees or Affiliates of, or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative of, the Stockholder Representatives (as defined belowcollectively, the “Stockholder Representatives”) not to, directly or indirectlyindirectly through any person or entity, (i) solicit, initiate or encourage, or take any other action to facilitate designed to, or encourage which would reasonably be expected to, facilitate, any inquiries or the submission making of any Acquisition Proposal, proposal that constitutes or would reasonably be expected to lead to a Takeover Proposal or (ii) enter into into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating with respect to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a any Stockholder Representative of such Stockholder shall be a breach of this Section 3(d) by such Stockholder. Upon execution The Stockholder shall promptly advise Parent orally and in writing of this Agreement, such any Takeover Proposal or inquiry made to the Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Takeover Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any Until the earlier of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative the consummation of such Stockholder the Merger and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 termination of the Delaware Law or other applicable law in connection with Merger Agreement pursuant to its terms, the Merger.
(g) Such Stockholder shall use all his, hers or its reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any other transaction contemplated by this Agreement or the Merger Agreement without the prior written consent of Parent, except as may be required by applicable law.
(f) The Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement. Each such beneficiary hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
(g) The Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement and this Agreement, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights under Section 262 of the DGCL or other applicable law in connection with the Merger.
Appears in 1 contract
Samples: Stockholder Agreement (Animas Corp)
Covenants of Each Stockholder. Each StockholderUntil the termination of this Agreement in accordance with Section 8, severally and not jointly, each Stockholder agrees as follows:
(a) No Stockholder shall, nor shall such Stockholder permit his or its Affiliates to (i) Transfer or enter into any contract, option or other agreement providing for the Transfer of any of the Subject Shares owned by such Stockholder or (ii) grant any proxies or powers of attorney or other authorization or consent in or with respect to the Subject Shares owned by such Stockholder, deposit any Subject Shares owned by such Stockholder into a voting trust or enter into a voting agreement or arrangement with respect to any Subject Shares owned by such Stockholder, or take any other action, that would materially restrict, limit or interfere with the performance of its or his obligations hereunder. The foregoing restrictions on Transfers of Subject Shares shall not prohibit any such Transfers by any Stockholder in connection with the transactions contemplated by the Merger Agreement or the Rollover Commitment Letter.
(b) At any meeting of the stockholders shareholders of the Company called to vote upon the Merger Agreement, and/or the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and/or the Merger Agreement is sought, such each Stockholder shall vote (or cause to be voted), in person or by proxy, or deliver a written consent (or cause a consent to be delivered) covering, all of the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon and each class thereof), in favor of, and shall consent to (or cause to be consented to), (i) of the adoption of the Merger Agreement and the approval of, the Merger and of each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreementthereby.
(bc) At any meeting of the stockholders shareholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitation) of all or some of the shareholders of the Company is sought, such each Stockholder shall vote (or cause to be voted), in person or by proxy, or deliver a written consent (or cause a consent to be delivered) covering, all of the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented toeach class thereof), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale or transfer of a material amount of assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any proposal made by any Person other than Parent or its Affiliates that was initiated in opposition to or in competition with the transactions contemplated by the Merger Agreement (a “Competing Proposal”) and (ii) any amendment of the Company’s Articles certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any subsidiaries (other than the amendments of its stockholdersthe Company’s certificate of incorporation and by-laws resulting from the Merger), which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner delay, impede, frustrate, prevent or impede or delay nullify the consummation of the Merger or the other transactions contemplated by Merger, the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or change in any manner the voting rights of each 3 class of Common Stock. Subject to Section 6, each Stockholder further agrees not to commit or agree to take any action inconsistent with the transactions contemplated by this Agreement without foregoing.
(d) Subject to the prior written consent terms of ParentSection 6, except as may be required by applicable law. As used hereinno Stockholder shall, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for nor shall any Stockholder that is not a natural person, authorize or permit any of such Stockholder’s Subsidiaries Representatives to (and shall use all reasonable efforts to cause such Persons not to), directly or indirectly, initiate, solicit, or knowingly encourage any inquiry or the making of any proposal or offer that constitutes or would reasonably be expected to lead to a Competing Proposal, or continue or otherwise participate in any discussions or negotiations with any Person with respect to a Competing Proposal, or provide any non-public information or data concerning the Company or any of its Subsidiaries to any Person relating to a Competing Proposal. No Stockholder shall, alone or their officerstogether with any other Person, directorsmake a Competing Proposal. If any Stockholder receives any inquiry or proposal regarding any Takeover Proposal, employeessolely in his or her capacity as a shareholder of the Company, such Stockholder shall promptly inform Parent of such inquiry or proposal and the details thereof. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 4(d) by any of such Stockholder’s Representatives shall be deemed to be a violation of this Section 4(d) by such Stockholder. Notwithstanding this Section 4(d), nothing in this Agreement shall prohibit any Stockholder from engaging in any discussions with any third Person with which the Company is permitted to engage in discussions pursuant to Sections 5.2(a) or (c) of the Merger Agreement, regarding such Stockholder’s equity participation, investment bankersor reinvestment in any Acquisition Proposal and terms related thereto, attorneysprovided that prior to the termination of this Agreement pursuant to Section 8, accountantssuch Stockholder will not enter into any agreement with respect to such participation, consultants investment or reinvestment.
(e) Each Stockholder hereby agrees, while this Agreement is in effect, promptly to notify the Parent of the number of any new shares of Common Stock with respect to which beneficial ownership is acquired, if any, after the date hereof and other agents, advisors, or other representativesbefore the Effective Time. Any such shares shall automatically become subject to the terms of this Agreement as Subject Shares as though owned by the Stockholder as of the date hereof.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Each Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate carry out the intent and make effective, in the most expeditious manner practicable, the Mergerpurposes of this Agreement.
Appears in 1 contract
Samples: Voting and Support Agreement (Sra International Inc)
Covenants of Each Stockholder. Each StockholderUntil the termination of this Agreement in accordance with Section 8, severally and not jointly, each Stockholder agrees as follows:
(a) No Stockholder shall, nor shall such Stockholder permit his or its Affiliates to (i) Transfer or enter into any contract, option or other agreement providing for the Transfer of any of the Subject Shares owned by such Stockholder or (ii) grant any proxies or powers of attorney or other authorization or consent in or with respect to the Subject Shares owned by such Stockholder, deposit any Subject Shares owned by such Stockholder into a voting trust or enter into a voting agreement or arrangement with respect to any Subject Shares owned by such Stockholder, or take any other action, that would materially restrict, limit or interfere with the performance of its or his obligations hereunder. The foregoing restrictions on Transfers of Subject Shares shall not prohibit any such Transfers by any Stockholder in connection with the transactions contemplated by the Merger Agreement or the Rollover Commitment Letter.
(b) At any meeting of the stockholders shareholders of the Company called to vote upon the Merger Agreement, and/or the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and/or the Merger Agreement is sought, such each Stockholder shall vote (or cause to be voted), in person or by proxy, or deliver a written consent (or cause a consent to be delivered) covering, all of the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon and each class thereof), in favor of, and shall consent to (or cause to be consented to), (i) of the adoption of the Merger Agreement and the approval of, the Merger and of each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreementthereby.
(bc) At any meeting of the stockholders shareholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitation) of all or some of the shareholders of the Company is sought, such each Stockholder shall vote (or cause to be voted), in person or by proxy, or deliver a written consent (or cause a consent to be delivered) covering, all of the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented toeach class thereof), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale or transfer of a material amount of assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any proposal made by any Person other than Parent or its Affiliates that was initiated in opposition to or in competition with the transactions contemplated by the Merger Agreement (a “Competing Proposal”) and (ii) any amendment of the Company’s Articles certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any subsidiaries (other than the amendments of its stockholdersthe Company’s certificate of incorporation and by-laws resulting from the Merger), which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner delay, impede, frustrate, prevent or impede or delay nullify the consummation of the Merger or the other transactions contemplated by Merger, the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or change in any manner the voting rights of each class of Common Stock. Subject to Section 6, each Stockholder further agrees not to commit or agree to take any action inconsistent with the transactions contemplated by this Agreement without foregoing.
(d) Subject to the prior written consent terms of ParentSection 6, except as may be required by applicable law. As used hereinno Stockholder shall, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for nor shall any Stockholder that is not a natural person, authorize or permit any of such Stockholder’s Subsidiaries Representatives to (and shall use all reasonable efforts to cause such Persons not to), directly or indirectly, initiate, solicit, or knowingly encourage any inquiry or the making of any proposal or offer that constitutes or would reasonably be expected to lead to a Competing Proposal, or continue or otherwise participate in any discussions or negotiations with any Person with respect to a Competing Proposal, or provide any non-public information or data concerning the Company or any of its Subsidiaries to any Person relating to a Competing Proposal. No Stockholder shall, alone or their officerstogether with any other Person, directorsmake a Competing Proposal. If any Stockholder receives any inquiry or proposal regarding any Takeover Proposal, employeessolely in his or her capacity as a shareholder of the Company, such Stockholder shall promptly inform Parent of such inquiry or proposal and the details thereof. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 4(d) by any of such Stockholder’s Representatives shall be deemed to be a violation of this Section 4(d) by such Stockholder. Notwithstanding this Section 4(d), nothing in this Agreement shall prohibit any Stockholder from engaging in any discussions with any third Person with which the Company is permitted to engage in discussions pursuant to Sections 5.2(a) or (c) of the Merger Agreement, regarding such Stockholder’s equity participation, investment bankersor reinvestment in any Acquisition Proposal and terms related thereto, attorneysprovided that prior to the termination of this Agreement pursuant to Section 8, accountantssuch Stockholder will not enter into any agreement with respect to such participation, consultants investment or reinvestment.
(e) Each Stockholder hereby agrees, while this Agreement is in effect, promptly to notify the Parent of the number of any new shares of Common Stock with respect to which beneficial ownership is acquired, if any, after the date hereof and other agents, advisors, or other representativesbefore the Effective Time. Any such shares shall automatically become subject to the terms of this Agreement as Subject Shares as though owned by the Stockholder as of the date hereof.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Each Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate carry out the intent and make effective, in the most expeditious manner practicable, the Mergerpurposes of this Agreement.
Appears in 1 contract
Samples: Voting and Support Agreement (Providence Equity Partners VI L P)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, agrees agrees, subject to the terms and conditions of this Agreement, as follows:
(a) In connection with any closing of a purchase and sale pursuant to the exercise of an Option, each Stockholder agrees to deliver to the Escrow Agent promptly after receipt of a notice of exercise, all certificates evidencing the Subject Shares held by such Stockholder, duly endorsed in blank for transfer, or accompanied by stock powers and such other documents as may be necessary in the Investor's judgment to transfer record ownership of the Subject Shares being sold pursuant to such exercise to or as directed by the Investor.
(b) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficiallyexcept for the Series D Stock, unless it shall first have been converted into Common Stock) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated adoption by the Merger Agreement and (ii) any other matter intended to facilitate the consummation Company of the transactions contemplated by the Merger Agreement.
(bc) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficiallyexcept for the Series D Stock, unless it shall first have been converted into Common Stock) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, merger or other Acquisition Proposal (other than Alternative Transaction as such term is defined in Section 5.2 of the Merger Agreement and the Merger)Agreement, or (ii) any amendment of the Company’s Articles 's certificate of Incorporation incorporation or Bylaws by-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could would be reasonably be expected likely to impede, frustrate, prevent or impede or delay nullify the consummation of the Merger or the other transactions contemplated by Merger, the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Stockholder shall not, and shall cause any of its Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or change in any manner the voting rights of the transactions contemplated by this Agreement without the prior written consent any class of ParentCompany Common Stock, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.or
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder, acting as a stockholder of the Company and not as an officer or director of the Company, severally and not jointly, agrees as follows:
(a) At Without in any way limiting each Stockholder's right to vote its Subject Shares in its sole discretion with respect to any other matters, at any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall shall, including by executing a written consent if requested by Parent, vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, of the Merger terms thereof and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such the Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, business combination, recapitalization, liquidation, dissolution, joint venture, binding share exchange, sale of substantial assets reorganization, or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company’s Articles of Incorporation Company Certificate or Bylaws Amended and Restated By-laws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholdersCompany, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede nullify, or delay the consummation result in a breach of any covenant, representation or warranty or any other obligation of the Company under or with respect to, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) Stock. The Stockholder shall not commit or that would otherwise facilitate a Frustrating Transactionagree to take any action inconsistent with the foregoing.
(c) Such The Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer (including any profit sharing or other derivative arrangement) of of, any Subject Shares (or any interest therein, ) to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of this Agreement the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to any Subject Shares, Shares other than pursuant to this AgreementAgreement and shall not commit or agree to take any of the foregoing actions. The Stockholder shall not, nor shall such Stockholder permit any entity under such Stockholder's control to, deposit any Subject Shares in a voting trust. Nothing contained herein will in this Section 3(c) shall prohibit any sale, transfer or assignment of Subject Shares by a Stockholder that is a natural person to members of such Stockholder's family, a family trust of such Stockholder or a charitable institution or, by a Stockholder that is a family trust to a grantor or a beneficiary of that trust, if, in each case, the transferee of such Subject Shares agrees in writing to be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under bound by the terms hereof and notice of such Company Stock Option sale, transfer or assignment, including the plans under which they were grantedname and address of the purchaser, transferee or assignee, is delivered to Parent prior to such sale, transfer or assignment.
(d) Subject to Section 11, such The Stockholder shall not, and nor shall cause it authorize or permit (to the extent that it has the power not to permit) any of its employees or Affiliates of, or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative of, the Stockholder Representatives (as defined belowcollectively, the "Stockholder Representatives") not to, directly or indirectlyindirectly through any person or entity, (i) solicit, initiate or encourage, or take any other action to facilitate designed to, or encourage which would reasonably be expected to, facilitate, any inquiries or the submission making of any Acquisition Proposal, proposal that constitutes or would reasonably be expected to lead to a Takeover Proposal or (ii) enter into into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating with respect to the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a any Stockholder Representative of such Stockholder shall be a breach of this Section 3(d) by such Stockholder. Upon execution The Stockholder shall promptly advise Parent orally and in writing of this Agreement, such any Takeover Proposal or inquiry made to the Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Takeover Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder shall not and shall not permit any Until the earlier of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative the consummation of such Stockholder the Merger and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(f) Such Stockholder agrees not to exercise or assert, any dissenters’ or similar rights under Section 262 termination of the Delaware Law or other applicable law in connection with Merger Agreement pursuant to its terms, the Merger.
(g) Such Stockholder shall use all his, hers or its reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any other transaction contemplated by this Agreement or the Merger Agreement without the prior written consent of Parent, except as may be required by applicable law.
(f) The Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement. Each such beneficiary hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
(g) The Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement and this Agreement, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights under Section 262 of the DGCL or other applicable law in connection with the Merger.
Appears in 1 contract
Samples: Stockholder Agreement (Animas Corp)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitationconsent) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): : (i) any merger agreement, merger or other Acquisition Takeover Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles 's Certificate of Incorporation or Bylaws By-laws or other proposal, action or transaction involving the Company or any of its Subsidiaries subsidiaries or any of its stockholdersstock- holders, which amendment or other proposal, action or transaction could reasonably be expected to would prevent or impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “"Frustrating Transactions”) "). Such stockholders shall not commit to or agree to take any action inconsistent with the foregoing or that would otherwise facilitate a Frustrating Transaction.
(c) Such Stockholder shall not (i) sell, transfer, pledge, assign, tender assign or otherwise dispose of (including by gift) (collectively, “"Transfer”"), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction with respect to its vote, consent or other approval sought in connection with the adoption by the stockholders of the Company of the Merger Agreement or the approval of the Merger or the other transactions contemplated by the Merger Agreement (and if entered into or executed, any Subject Sharessuch voting arrangement, voting agreement or other agreement shall not be effective), and shall not commit or agree to take any of the foregoing actions, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of Such Stockholder shall not, nor shall such Stockholder permit any Stockholder to exercise entity under such Stockholder's control to, deposit any Company Stock Options Subject Shares in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were grantedvoting trust.
(d) Each Stockholder hereby grants to Parent an irrevocable option to purchase any or all the Subject Shares of such Stockholder, at any time or from time to Section 11time after a Takeover Proposal has been made, such for a purchase price equal to $4.00 per share in cash (the "Parent Option Price").
(e) Such Stockholder shall not, and nor shall cause such Stockholder permit any of its subsidiaries to, or authorize or permit any director, officer, employee or general partner of such Stockholder Representatives (as defined below) not or any of its subsidiaries, or any investment banker, attorney, accountant or other advisor or representative of such Stockholder or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate facilitate, any Takeover Proposal or encourage other Frustrating Transaction or any inquiries or the submission making of any Acquisition Proposalproposal that constitutes a Takeover Proposal or other Frustrating Transaction, (ii) enter into any agreement with respect to any Takeover Proposal or other Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any person any information relating to the Company or any of its Subsidiaries with respect to, or otherwise cooperate in any way with, or knowingly assist, assist or participate in, facilitate or encourage in any effort or attempt by any Third Party that is seeking to makeperson with respect to, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement Takeover Proposal or other similar instrument constituting or relating to an Acquisition ProposalFrustrating Transaction. Without limiting the foregoing, it is agreed understood that any violation in any material respect of the restrictions on such Stockholder set forth in the preceding sentence by a any director, officer, employee or general partner of, or any investment banker, attorney, accountant or other advisor or representative of such Stockholder Representative or any of its subsidiaries, whether or not such Person is purporting to act on behalf of such Stockholder, shall be deemed to be a breach violation of this Section 3(e) by such Stockholder. Upon execution Such Stockholder shall promptly advise Parent orally and in writing of this Agreement, any Takeover Proposal or inquiry made to such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her Takeover Proposal or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestother Frustrating Transaction.
(ef) Such Stockholder shall not and not, nor shall not such Stockholder permit any of its subsidiaries to, or authorize or permit any director, officer, employee or general partner of such Stockholder Representatives or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of such Stockholder or any of its subsidiaries to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives.
(fg) Such Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement and this Agreement, the Merger and the other transactions contem plated by the Merger Agreement. Such Stockholder hereby waives, and agrees not to exercise or assert, any dissenters’ appraisal or similar rights under Section 262 of the Delaware Law DGCL or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
Appears in 1 contract
Samples: Stockholders Agreement (International Business Machines Corp)
Covenants of Each Stockholder. Each Except as may otherwise be consented to by Parent in writing, each Stockholder, severally and not jointly, only as to itself, covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) entitled to vote thereon in favor of, and shall consent to (or cause to be consented to), (i) the adoption of the Merger Agreement and the approval of, of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent, adoption or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement Contract to enter into, effect, facilitate or support any of the following): (i) any merger agreement, merger or other Acquisition Takeover Proposal (other than the Merger Agreement and the Merger), or (ii) any amendment of the Company’s Articles Amended and Restated Certificate of Incorporation or Bylaws By-laws or other proposal, action or transaction involving the Company or any of its Subsidiaries subsidiaries or any of its stockholders, which amendment or other proposal, action or transaction could is reasonably be expected likely to prevent or materially impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction).
(c) Such Stockholder shall not (i) prior to the Stockholders Meeting, sell, transfer, pledge, assign, tender or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any Contract, option option, call or other arrangement with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any Person person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder stockholder agreement with Parent on terms substantially identical to the terms of this Agreement or agrees to become a party to this Agreement pursuant to a joinder agreement satisfactory to Parent or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Takeover Proposal or Frustrating Transaction with respect to any Subject Shares, other than pursuant to this Agreement. Nothing contained herein will be deemed to restrict the ability of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted.
(d) Subject to Section 11, such Such Stockholder shall not, and nor shall cause such Stockholder permit any of its subsidiaries to, or authorize any person or permit any director, officer or employee of such Stockholder Representatives (as defined below) not or any of its subsidiaries, or any investment banker, attorney, accountant or other advisor or representative of such Stockholder or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate facilitate, any Takeover Proposal or encourage Frustrating Transaction or the submission making of any Acquisition inquiry or proposal that could reasonably be expected to lead to a Takeover Proposal, or (ii) enter into into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish to any information relating to person (other than Parent or its representatives or the Company or its representatives) any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore information with respect to any Takeover Proposal or Frustrating Transaction. Notwithstanding the foregoing and notwithstanding Section 3(e), nothing in this Agreement shall limit or restrict any person that is a director of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement, such Stockholder shall notify Parent promptly (but from acting in no event later than 24 hours) after receipt by such Stockholder in his, his or her or its capacity as such (or its Stockholder Representative) a member of any Acquisition Proposal, any indication that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or the Board of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify Directors of the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or requestCompany.
(ei) Such Stockholder shall use his or her or its commercially reasonable efforts to take, or cause to be taken, all actions, that are necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement and the Merger Agreement. Such Stockholder shall not commit or agree to take any action inconsistent with the transactions contemplated by this Agreement or the transactions contemplated by the Merger Agreement.
(ii) Such Stockholder shall not, and such Stockholder shall not permit any of its subsidiaries to, or authorize any person or permit any director, officer or employee of such Stockholder Representatives or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of such Stockholder or any of its subsidiaries to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of Parent, except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor Law or representative of such Stockholder and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representativescourt process.
(f) Such Stockholder agrees not hereby waives any rights of appraisal, or rights to exercise or assert, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with dissent from the Merger, that such Stockholder may have.
(g) Such With respect to each individual listed on Schedule B hereto (each, a “Restricted Person”), such Stockholder shall use all reasonable efforts not, nor shall such Stockholder authorize or permit any of its directors, officers, employees or controlled representatives to, during the Restricted Period applicable to takesuch Restricted Person as set forth on Schedule B hereto, (i) solicit, recruit or cause hire such Restricted Person, (ii) solicit or encourage such Restricted Person to be takenleave the employment of the Company or any of its subsidiaries or (iii) take any action specified in clause (A) of the immediately following sentence with respect to such Restricted Person. Notwithstanding the foregoing, all the restrictions of this subsection (g) shall not (A) prevent any portfolio company that is an affiliate of such Stockholder or that has such Stockholder or any director, officer, employee or controlled representative of such Stockholder as a director or officer from taking any of the foregoing actions; provided, however, that such Stockholder does not, and such Stockholder does not authorize or permit any of its directors, officers, employees or controlled representatives to, (w) identify any Restricted Person to doany such portfolio company for any such solicitation, recruiting, hiring or cause encouraging, (x) comment to such portfolio company on the qualifications or suitability of any Restricted Person, (y) encourage, direct, cause, facilitate or participate in any such solicitation, recruiting, hiring or encouraging or (z) approve any such solicitation, recruiting, hiring or encouraging in any manner (it being understood that a director of any such portfolio company shall not be donedeemed to have approved the solicitation, and recruiting, hiring or encouraging of any Restricted Person in violation of this subclause (z) solely by voting as a director to assist and cooperate approve the hiring of such Restricted Person) or (B) apply to the placement of general advertisements or the use of general search firm services with Parent in doingrespect to a particular geographic or technical area, all things necessary, proper but which are not targeted directly or advisable indirectly towards any Restricted Person (it being understood that the restrictions of this subsection (g) shall apply to consummate and make effective, in the most expeditious manner practicable, candidacy of any Restricted Person resulting from any such advertisement or the Mergeractivities of any such search firm service).
Appears in 1 contract
Samples: Stockholders Agreement (Corio Inc)
Covenants of Each Stockholder. Each Until the termination of this Agreement in accordance with Section 8, each Stockholder, severally and not jointly, agrees as follows:
(a) At Without in any way limiting the Stockholder's right to vote the Subject Shares in its sole discretion on any other matters that may be submitted to a stockholder vote, consent or other approval (including by written consent), at any meeting of the stockholders of the Company called to vote upon the Merger Agreement, and the Merger or any of the other transactions contemplated by the Merger Agreement, Agreement or at any adjournment thereof, thereof or in any other circumstances upon which a vote, consent, adoption consent or other approval (including by written consent solicitationconsent) with respect to the Merger Agreement, the Merger or any of the other transactions contemplated by and the Merger Agreement is sought, such the Stockholder shall shall, including by initiating a written consent solicitation if requested by Parent, vote (or cause to be voted) all the such Stockholder's Subject Shares of such Stockholder (owned of record or beneficiallyand each class thereof) entitled to vote thereon in favor ofof the Merger, and shall consent to (or cause to be consented to), (i) the adoption by the Company of the Merger Agreement and the approval of, the Merger and each of the other transactions contemplated by the Merger Agreement and (ii) any other matter intended to facilitate the consummation of the transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment thereof or in any other circumstances upon which a the Stockholder's vote, consent, adoption consent or other approval (including by written consent solicitation) is sought, such Stockholder shall vote (or cause to be voted) all the such Stockholder's Subject Shares of such Stockholder (owned of record or beneficially) against, and shall not consent to (and shall cause not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): against (i) any merger agreement, agreement or merger or other Acquisition Proposal (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Company Acquisition (collectively, "Alternative Transactions") or (ii) any amendment of the Company’s Articles 's Certificate of Incorporation or Bylaws or other proposal, action proposal or transaction involving the Company or any of its Subsidiaries or any of its stockholderssubsidiaries, which amendment or other proposal, action proposal or transaction could reasonably be expected to would in any manner impede, frustrate, prevent or impede or delay nullify the consummation of Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement or to dilute in any material respect the benefits to Parent of the Merger and the other transactions contemplated by the Merger Agreement or the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, “"Frustrating Transactions”) or that would otherwise facilitate a Frustrating Transaction").
(c) Such Stockholder shall not (i) transfertransfer (which term shall include, pledgewithout limitation, assignfor the purposes of this Agreement, tender any sale, gift, pledge or otherwise dispose of (including by gift) (collectively, “Transfer”other disposition), or consent to or permit any Transfer transfer of, any or all of such Stockholder's Subject Shares or any interest therein, or except pursuant to the Merger, (ii) enter into any Contractcontract, option or other agreement, arrangement or understanding with respect to the Transfer (including any profit sharing or other derivative arrangement) all of any such Subject Shares or any interest therein, (iii) grant any proxy, power-of-attorney or other authorization in or with respect to any Person other than pursuant to this Agreement or the Merger Agreement, unless prior to any such Transfer the transferee of such Subject Shares enters into a Stockholder agreement with Parent on terms substantially identical to the terms of Shares, except for this Agreement or (iiiv) deposit such Shares into a voting trust or enter into any voting arrangement, whether by proxy, a voting agreement or otherwise, in connection with, directly or indirectly, any Acquisition Proposal or Frustrating Transaction arrangement with respect to such Shares; PROVIDED, HOWEVER, that any such Stockholder may transfer (as defined above) any of the Subject SharesShares to any other Stockholder who is on the date hereof, other than pursuant or to any family member of a Stockholder or beneficiary of a trust for which Stockholder is trustee or charitable institution which prior to the Stockholders Meeting and prior to such transfer becomes, a party to this Agreement. Nothing contained herein will be deemed to restrict Agreement bound by all the ability obligations of any Stockholder to exercise any Company Stock Options in a “net exercise” or “cashless exercise” manner to the extent otherwise permitted under the terms of such Company Stock Option or the plans under which they were granted"Stockholder" hereunder.
(d) Such Stockholder hereby waives any rights of appraisal, or rights to dissent from the Merger, that such 5 Stockholder may have and hereby irrevocably agrees to make a Stock Election with respect to at least 85% of such Stockholder's Subject to Section 11Shares.
(e) During the term of this Agreement, such the Stockholder shall not, and nor shall cause it authorize or permit any officer, director, partner, employee or agent or any investment banker, attorney or other advisor or representative of its the Stockholder Representatives (as defined below) not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal, Takeover Proposal or (ii) enter into or participate in any discussions or negotiations withregarding, or furnish to any person any information relating with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Takeover Proposal. The foregoing sentence shall not prohibit the Stockholder from taking any action that would be permitted under Section 4.02 of the Merger Agreement and in no event shall the Stockholder be liable for any action taken by the Company or any of its Subsidiaries to, otherwise cooperate the Stockholder in any way compliance with, or knowingly assistthat would be permitted under, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter Section 4.02 of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions on such Stockholder set forth in the preceding sentence by a Stockholder Representative shall be a breach of this Section by such Stockholder. Upon execution of this Agreement, such Stockholder shall, and it shall cause any of its Stockholder Representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. To the same extent required by the Company pursuant to, and subject to the same conditions contained in, the Merger Agreement; PROVIDED, such Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by such Stockholder in his, her or its capacity as such (or its Stockholder Representative) of any Acquisition Proposal, any indication HOWEVER that a Third Party is reasonably likely to make an Acquisition Proposal to such Stockholder in his, her or its capacity as such or of any request for information to such Stockholder in his, her or its capacity as such relating such Stockholders Subject Shares by any Third Party that is reasonably likely to make or has made an Acquisition Proposal to such Stockholder in his, her or its capacity as such, which notice shall be provided orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal, indication or request.
(e) Such Stockholder this sentence shall not and shall not permit any of its Stockholder Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to limit the Merger Agreement, this Agreement, the Merger or any obligations of the other transactions contemplated by the Merger Agreement or any of the transactions contemplated by this Agreement without the prior written consent of ParentStockholder under Sections 3(a), except as may be required by applicable law. As used herein, the term “Stockholder Representative” means (i3(b) for any individual Stockholder, any investment banker, attorney, accountant, consultant and any other agent, advisor or representative of such Stockholder 3(j) and (ii) for any Stockholder that is not a natural person, any of such Stockholder’s Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors, or other representatives4 hereof.
(f) Such Stockholder agrees not to exercise Until after the Merger is consummated or assertthe Merger Agreement is terminated, any dissenters’ or similar rights under Section 262 of the Delaware Law or other applicable law in connection with the Merger.
(g) Such Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious expeditions manner practicable, the MergerMerger and the other transactions contemplated by the Merger Agreement. The foregoing sentence shall not prohibit the Stockholder from taking any action that would be permitted under Section 4.02 of the Merger Agreement and in no event shall the Stockholder be liable for any action taken by the Company or the Stockholder in compliance with, or that would be permitted under, Section 4.02 of the Merger Agreement; PROVIDED, HOWEVER that this sentence shall not limit the obligations of the Stockholder under Sections 3(a), 3(b) and 3(j) and 4 hereof.
(g) If, at the time the Merger Agreement is submitted for approval to the stockholders of the Company, a Stockholder is an "affiliate" of the Company for purposes of Rule 145 under the Securities Act, such Stockholder shall deliver to Parent on or prior to the Closing Date a written agreement substantially in the form attached as Exhibit A to the Merger Agreement.
(h) The Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke, terminate or amend such trust or take any other action which would restrict, limit or frustrate in any way the transactions contemplated by this Agreement, including withdrawing any Subject Shares from such trust or replacing any trustees of such trust. The Stockholder, on behalf of each such beneficiary, hereby acknowledges and agrees to be bound by the terms of this Agreement applicable to it.
(i) Each Stockholder shall cause this Agreement to be filed with the Secretary of the Company.
(i) In the event that the Merger Agreement shall have been terminated under circumstances where Parent is or may become entitled to receive the Termination Fee, each Stockholder shall pay to Parent on demand an amount equal to all profit (determined in accordance with Section 3(j)(ii)) of such Stockholder from the consummation of (A) any Company Acquisition consummated within 12 months following the termination of the Merger Agreement pursuant to Section 7.01(b)(iv) thereof or (B) any Company Acquisition that results in the Company being obligated to pay the Termination Fee in accordance with the Merger Agreement.
(ii) For purposes of this Section 3(j), the profit of any Stockholder from any Company Acquisition shall equal (A) the aggregate consideration received by such Stockholder pursuant to such Company Acquisition, valuing any non-cash consideration (including any residual interest in the Company) at its fair market value on the date of such consummation plus (B) the fair market value, on the date of disposition, of all Subject Shares of such Stockholder disposed of after the termination of the Merger Agreement and prior to the date of such consummation less (C) the fair market value of the aggregate consideration that would have been issuable or payable to such Stockholder if such Stockholder had received the Merger Consideration set forth in the Merger Agreement in effect on the date hereof (the "Original Merger Consideration"), valued as of the close of business on the last full trading day prior to the first public announcement by the Company of its intention to terminate the Merger Agreement as if the Merger had been consummated on the date of such public announcement. In addition, it is agreed that for purposes of this Section 3(j), the profit of any Stockholder from any Company Acquisition shall be net of any taxes paid or payable by Stockholder in respect of or otherwise attributable to such profit (after taking into account the present value of any tax benefits in respect of or otherwise attributable to any payment of such profit pursuant to Section 3(j)(i)); it being understood that any such Stockholder shall deliver to Parent a written opinion of a nationally recognized accounting firm as to the amount of any such net tax adjustments at the time of the payment of any profits pursuant to Section 3(j)(i).
(iii) For purposes of this Section 3(j), the fair market value of any non-cash consideration consisting of:
(A) securities listed on a national securities exchange or traded on the Nasdaq Stock Market shall be equal to the average closing price per share of such security as reported on such exchange or Nasdaq Stock Market for the five trading days before the date of determination; and
(B) consideration that is other than cash or securities of the form specified in clause (A) of this Section 3(j)(iii) shall be determined by a nationally recognized independent investment banking firm mutually agreed upon by Parent and the Stockholders within 10 business days of the event requiring selection of such banking firm; PROVIDED, HOWEVER, that if Parent and the Stockholders are unable to agree within two business days after the date of such event as to the investment banking firm, then Parent and the Stockholders shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; PROVIDED FURTHER, that the fees and expenses of such investment banking firm shall be borne equally by Parent, on the one hand, and the Stockholders, on the other hand. The determination of the investment banking firm shall be binding upon the parties.
(iv) Any payment of profit under this Section 3(j) shall be paid in the same form as the consideration received from the Company Acquisition or disposition (and, if the consideration received from the Company Acquisition or disposition was received in more than one form, in the same proportion as the forms of consideration received) and (x) to the extent paid in cash, shall be paid by wire transfer of same day funds to an account designated by Parent and (y) to the extent paid through a transfer of securities, shall be paid through delivery of such securities, suitably endorsed for transfer.
Appears in 1 contract
