Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows: (1) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to seek the Company Stockholder Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement, the Merger or any other Transaction is sought, the Stockholder shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Company Stockholder Approval. (2) The Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKay, and Charles R. Lotter, or any of them, and any inxxxxxxxx xxxxxxated ix xxxxxxx 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 in a manner consistent with this Section 3. 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) 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 5. (b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company 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 of the Stockholder against (i) 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, (ii) any Acquisition Proposal and (iii) any amendment of the Company Charter or the Company By-laws or other proposal or transaction involving the Company or any Company Subsidiary, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify any provision of the Merger Agreement or any other Transaction Agreement, the Merger or any other Transaction or change in any manner the voting rights of any class of capital stock of the Company. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing. (c) Other than this Agreement and except as provided in the next sentence, the Stockholder shall not (i) sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares to any person other than pursuant to the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares and shall not commit or agree to take any of the foregoing actions. Notwithstanding the foregoing, the following Transfers are expressly permitted:
Appears in 2 contracts
Samples: Company Stockholder Agreement (Penney J C Co Inc), Company Stockholder Agreement (Penney J C Co Inc)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, Stockholder covenants and agrees as follows:
(1i) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to seek the Company Stockholder Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement, the Merger or any other Transaction transaction contemplated by the Merger Agreement is sought, the such Stockholder shall, including by executing a written consent solicitation if requested by Parent, shall vote (or cause to be voted) all of the Subject Shares of the such Stockholder in favor of granting the Stockholder Approval and any other actions presented to stockholders of the Company that are necessary and desirable in furtherance of the Merger, the Stockholder ApprovalApproval or any other transactions contemplated by the Merger Agreement.
(2ii) The Each Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKay, Parent and Charles R. LotterSub, or any of them, and any inxxxxxxxx xxxxxxated ix xxxxxxx xx xxx individual designated in writing by any of them, and each of them individually, as the such Stockholder's ’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the such Stockholder, to vote the such Stockholder’s Subject Shares of the StockholderShares, or grant a consent or approval in respect of the such Subject Shares of the Stockholder Shares, in a manner consistent with this Section 31.03. The Such Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the such Stockholder's ’s execution and delivery of this Agreement. The Such Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a1.03(a)(ii) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of the such Stockholder under this Agreement. The Such Stockholder hereby further affirms that the irrevocable this proxy is coupled with an interest and may under no circumstances be revokedrevoked (except that such proxy is automatically revoked and terminated upon termination of this Agreement in accordance with Section 1.04). The Such Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the DGCL. The irrevocable DGCL (except that such proxy granted hereunder shall is automatically terminate revoked and terminated upon the termination of Sections 3(a) and 3(b) this Agreement in accordance with Section 51.04). Such Stockholder hereby represents that any proxies heretofore given by it in respect of the Subject Shares with respect to the matters covered by this Section 1.03(a)(ii), if any, are revocable, and hereby revokes such proxies. Upon delivery of written request to do so by Parent, such Subject Stockholder shall as promptly as practicable execute and deliver to Parent a separate written instrument or proxy that embodies the terms of the proxy set forth in this Section 1.03(a)(ii).
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's their vote, consent or other approval is sought, the such Stockholder shall vote (or cause to be voted) the its Subject Shares of the Stockholder against (i) 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 CompanyCompany or any other similar transaction, (ii) any Acquisition Takeover Proposal or any action which is a component of any Takeover Proposal and (iii) any amendment of the Company Charter Certificate or the Company By-laws Bylaws or other proposal or transaction involving the Company or any Company Subsidiary, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify any provision of the Merger Agreement or any of the other Transaction Agreement, transactions contemplated by the Merger or any other Transaction Agreement or change in any manner the voting rights of any class of capital stock of the CompanyCompany Common Stock. The Such Stockholder shall not commit or agree to take any action inconsistent with the foregoing.
(c) Other than Such Stockholder hereby agrees that, in the event (i) of any stock dividend, stock split, recapitalization, reclassification, combination or exchange of shares of capital stock or other equity interests or voting securities of the Company of, or affecting, the Subject Shares, (ii) such Stockholder purchases or otherwise acquires beneficial ownership of or an interest in any shares of capital stock or other equity interests or voting securities of the Company after the execution of this Agreement and except as provided (including by conversion, exercise or exchange) or (iii) such Stockholder voluntarily acquires the right to vote or share in the next sentencevoting of any shares of capital stock or other equity interests or voting securities of the Company other than the Subject Shares (collectively, the “New Shares”), such Stockholder shall not deliver promptly to Parent written notice of its acquisition of New Shares which notice shall state the number of New Shares so acquired. Such Stockholder agrees that any New Shares acquired or purchased by such Stockholder shall be subject to the terms of this Agreement, including the representations and warranties set forth in Section 1.01 and the covenants set forth in Section 1.03, and shall constitute Subject Shares to the same extent as if those New Shares were owned by such Stockholder on the date of this Agreement.
(d) Except pursuant to this Agreement, prior to the receipt of the Stockholder Approval, such Stockholder shall not, directly or indirectly: (i) sell, transfer, pledge, assign or otherwise dispose of (including by gift) ), hedge or utilize a derivative to transfer the economic interest in (collectively, "“Transfer"”), or enter into any Contract, option or other arrangement or understanding (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares to any person other than pursuant to the Merger or Merger, except for a Permitted Transfer (as defined below), (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares and shall not Shares, (iii) take any other action that would make any representation or warranty of such Stockholder herein untrue or incorrect or would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or the transactions contemplated hereby or (iv) commit or agree to take any of the foregoing actions. Notwithstanding For purposes hereof, a “Permitted Transfer” is any Transfer made by a Stockholder (including any Transfer resulting from death) to a person who executes a joinder to this Agreement agreeing to become a Stockholder hereunder; provided, however, that, except in the foregoingcase that such person is a Stockholder as of the date of this Agreement, notwithstanding anything to the contrary contained in this Agreement, (i) the Subject Shares of such person shall consist only of the Subject Shares transferred to such person in such Permitted Transfer and any shares described in Section 1.03(c)(i) that are issued on account of the Subject Shares so transferred, (ii) the representations and warranties contained in the second sentence of Section 1.01(d) shall not be applicable to such person, (iii) such person makes the other representations and warranties contained in Section 1.01(d) only as to the Subject Shares transferred to such person in such Permitted Transfer and (iv) such person shall not be liable for the act or omission of any other Stockholder hereunder. For purposes of this Agreement, the following Transfers are expressly permitted:term “person” shall have the meaning set forth in the Merger Agreement.
(e) Each Stockholder shall not (nor shall it authorize or permit any of its directors, officers, employees, investment bankers, financial advisors, attorneys, accountants or other advisors, agents or representatives (collectively, “Representatives”), acting on such Stockholder’s behalf, to), directly or indirectly through another person, (i) solicit, initiate or knowingly encourage, induce or facilitate any Takeover Proposal or any inquiry or proposal that could reasonably be expected to lead to a Takeover Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal or any inquiry or proposal that could reasonably be expected to lead to a Takeover Proposal. Such Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations, on such Stockholder’s behalf, with any person conducted heretofore with respect to any Takeover Proposal or any inquiry or proposal that could reasonably be expected to lead to a Takeover Proposal. Notwithstanding anything to the contrary contained in this Section 1.03(e), nothing contained in this Section 1.03(e) shall limit the ability of the Company or its Representatives (as defined in the Merger Agreement) to act, including their ability to act in accordance with Section 4.02 of the Merger Agreement.
(f) Such Stockholder shall consult with Parent before issuing, and give Parent the opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement or the Merger Agreement, including the Merger, and shall not issue any such press release or make any such public statement prior to such consultation, except as such Stockholder may reasonably conclude may be required by applicable law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system.
(g) Such Stockholder hereby waives, and agrees not to exercise or assert, any appraisal rights under Section 262 of the DGCL in connection with the Merger.
Appears in 2 contracts
Samples: Stockholder Agreement (Unilever N V), Stockholder Agreement (Alberto-Culver CO)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, Stockholder covenants and agrees as follows:
(1i) At any every meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company Target called to seek the Company Target Stockholder Approval Approval, at every adjournment or postponement thereof, and in any each other circumstances circumstance upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement, the Merger Agreement or any other Transaction of the transactions contemplated thereby (including the Target Merger and the Parent Merger), and any actions that would reasonably be considered to be in furtherance thereof, is sought, the such Stockholder shall, (A) if a meeting is held, appear at such meeting or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum and (B) vote (or cause to be voted), including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Company Merger Agreement and the other transactions contemplated thereby, and take any other actions reasonably requested by Parent in furtherance thereof (including, without limiting any of the foregoing obligations, in favor of any proposal to adjourn or postpone any meeting of Target’s stockholders at which any of the foregoing matters are submitted for consideration and vote of Target’s stockholders to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held to vote upon any of the foregoing matters). Such Stockholder Approvalrepresents that any proxies heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies are hereby revoked.
(2ii) The Such Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKay, and Charles R. Lotter, or any of them, Parent and any inxxxxxxxx xxxxxxated ix xxxxxxx xx xxx of themindividual designated in writing by Parent, and each of them individually, as the such Stockholder's ’s proxy and attorney-in-fact (with full power of substitutionsubstitution and resubstitution), for and in the name, place and stead of the such Stockholder, to vote the Subject Shares of the StockholderShares, or grant a consent or approval in respect of the Subject Shares of the Stockholder Shares, in a manner consistent with this Section 3. 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 Such Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a3(a)(ii) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of the such Stockholder under this Agreement. The Such Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. The Such Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the DGCLDelaware General Corporation Law. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of Sections 3(athis Agreement. Upon delivery of written request to do so by Parent, such Stockholder shall as promptly as practicable execute and deliver to Parent a separate written instrument or proxy that embodies the terms of the irrevocable proxy set forth in this Section 3(a)(ii); provided that such written instrument or proxy shall (i) be in a form reasonably acceptable to such Stockholder, and 3(b(ii) in accordance terminate upon the termination of this Agreement. Parent agrees that to the extent it exercises its rights under this Section 3(a)(ii), Parent shall comply with the appearance and voting requirements imposed on such Stockholder by Section 53(a)(i) with respect to such Stockholder’s Subject Shares.
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company Target or at any adjournment or postponement thereof or in any other circumstances upon which the such Stockholder's ’s vote, consent or other approval is sought, the such Stockholder shall vote (or cause to be voted) the Subject Shares of the Stockholder against (and shall not provide consents in favor of) (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, merger, reorganization, recapitalization, dissolution, liquidation or winding up of or by Target (other than the CompanyMerger Agreement and the transactions contemplated thereby), (ii) any Acquisition Alternative Transaction or Target Alternative Proposal (including any Superior Proposal), and (iii) any amendment of the Company Target Charter or the Company Target By-laws Laws or other proposal or transaction involving the Company Target or any Company Subsidiaryof its Subsidiaries, which amendment or other proposal or transaction would reasonably be expected to in any manner impede, frustrate, prevent prevent, delay or nullify any provision of the Merger Agreement or any other Transaction Agreementof the transactions contemplated hereby or thereby, the Merger or any other Transaction or change in any manner the voting rights of any class of capital stock of the CompanyTarget. The Such Stockholder shall not commit or agree to take any action inconsistent with the foregoingforegoing requirements in this Section 3(b).
(c) Other than Except as set forth in this Agreement and except as provided in the next sentenceAgreement, the such Stockholder shall not not, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion) (i) sell, transfer, pledge, hypothecate, assign or otherwise dispose of (including by gift) ), hedge or utilize a derivative to transfer the economic interest in (collectively, "“Transfer"”), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, or propose to Transfer, any Subject Shares to any person other than pursuant to the Merger or Person, (ii) grant any proxies, options or right of first offer or right of first refusal with respect to the Subject Shares, (iii) enter into into, or propose to enter into, any voting arrangement, whether by proxy, voting agreement agreement, voting trust or otherwise, with respect to any Subject Shares and shall not Shares, (iv) take any action that would make any representation or warranty of such Stockholder herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from performing its obligations hereunder or (v) commit or agree to take any of the foregoing actionsactions in clauses (i), (ii), (iii) or (iv). Notwithstanding anything to the contrary in the preceding sentence, nothing in this Section 3(c) shall prohibit (x) any Transfer in the case of such Stockholder’s death, by will or by the laws of interstate succession, or (y) any Transfer by a Stockholder to a trust for the benefit of any immediate family member of such Stockholder in connection with estate planning purposes so long as all of the beneficial interests in such trust are held by such Stockholder or one or more immediate family members of such Stockholder; in each case, so long as the other party to such Transfer or arrangement executes this Agreement (or a joinder thereto in a form reasonably satisfactory to Parent) and agrees to be bound by its terms; provided, however, that notwithstanding such Transfer or arrangement, such Stockholder shall continue to be liable for any breach by such transferee of its agreements and covenants under this Agreement.
(d) Such Stockholder shall not, and shall use its commercially reasonable best efforts to cause any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent or controlled affiliate of such Stockholder not to, directly or indirectly, (i) solicit, initiate, or take any action that it knows or reasonably should know would facilitate or encourage the submission of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiation with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to the Subject Shares. Without limiting the foregoing, it is agreed that any violation of the following Transfers are expressly permitted:restrictions set forth in the preceding sentence by any manager, officer, director, employee, agent, representative, consultant, financial advisor, attorney, accountant, other agent, or controlled affiliate of such Stockholder shall be deemed to be a breach of this Section 3(d) by such Stockholder. Each Stockholder shall, and shall use its commercially reasonable best efforts to cause its managers, officers, directors, employees, agents, representatives, consultants, financial advisors, attorneys, accountants, other agents, and controlled affiliates, as applicable, to, cease immediately and cause to be terminated any and all existing discussions, conversations, negotiations and other communications with any Person (other than any party to the Merger Agreement) conducted heretofore with respect to, or that would reasonably be expected to lead to, an Alternative Transaction or an Alternative Proposal.
(e) Such Stockholder shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or any of the transactions contemplated hereby or thereby, without the prior written consent of Parent (which consent may be withheld in Parent’s sole discretion), except to the extent required by applicable Law.
(f) Such Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights (including under the Delaware General Corporation Law) in connection with the Merger Agreement and the transactions contemplated thereby.
(g) Notwithstanding anything to the contrary in this Agreement and in this Section 3 in particular, such Stockholder is only executing this Agreement in his capacity as the Beneficial Owner, or owner of record, of the Subject Shares.
Appears in 2 contracts
Samples: Stockholder Voting Agreement (Rodman & Renshaw Capital Group, Inc.), Stockholder Voting Agreement (Hudson Holding Corp)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(1) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to seek vote upon the Company Stockholder Approval Merger and the Merger Agreement or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement, the Merger or any other Transaction transaction contemplated by the Merger Agreement is sought, the Stockholder shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Company Stockholder ApprovalMerger and the Merger Agreement.
(2) IRREVOCABLE PROXY The Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKay, Xxxxxxx X. Xxxx and Charles R. LotterXxxxxxx X. Xxxx, or any of them, and any inxxxxxxxx xxxxxxated ix xxxxxxx xx xxx individual designated in writing by any of them, and each of them individually, as the Stockholder's ’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 in a manner consistent with this Section 3. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's Stockholders’ execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of the 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 hereofin accordance herewith. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e78.355(5) of the DGCLNevada Revised Statutes. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of Sections 3(a) and 3(b) in accordance with Section 5).
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's ’s vote, consent or other approval (including by written consent) is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares of the Stockholder against against, and shall not consent to (and shall cause the Subject Shares of the Stockholder 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 or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, joint venture, binding share exchange, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, (ii) any Acquisition Company Takeover Proposal and (as defined in Section 5.02(e) of the Merger Agreement) or (iii) any amendment of the Company Charter articles of incorporation or by-laws of the Company By-laws or other proposal proposal, action or transaction involving the Company or any Company Subsidiaryof its stockholders, which amendment or other proposal proposal, action or transaction would reasonably be expected to in any manner impede, frustrate, interfere with, delay, prevent or nullify any provision of the Merger Agreement or any other Transaction Agreement, the Merger or any other Transaction transaction contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement, or change in any manner the voting rights of any class of capital stock of the CompanyCompany (collectively, “Frustrating Transactions”). The Stockholder shall not commit or agree to take any action inconsistent with the foregoing.
(c) Other than this Agreement and except as provided in the next sentence, the The Stockholder shall not (i) sell, transfer, pledge, 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 of, of any Subject Shares or any interest therein, to any person (other than, if the transactions contemplated by the Merger Agreement are consummated, by operation of law in the Merger), (ii) other than pursuant to the Merger or (ii) express terms of this Agreement, enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or (iii) take any action which would, or could reasonably be expected to result in a diminution of the voting power represented by any Subject Shares, and shall not commit or agree to take any of the foregoing actions. Notwithstanding the foregoing.
(d) The Stockholder shall not, nor shall he authorize or permit any employee of, or any investment banker, attorney or other adviser or representative of, the following Transfers are expressly permitted:Stockholder to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action to facilitate, any inquiries with respect to a potential Company Takeover Proposal or Frustrating Transaction or the submission of any Company Takeover Proposal or Frustrating Transaction, (ii) enter into any agreement with respect to any Company Takeover Proposal or Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, or assist or participate in any effort or attempt by any person with respect to, any Company Takeover Proposal or Frustrating Transaction. The Stockholder promptly shall advise Parent orally and in writing of any Company Takeover Proposal or Frustrating Transaction or inquiry made to the Stockholder with respect to or that would reasonably be expected to lead to a Company Takeover Proposal or Frustrating Transaction, the identity of the person making or initiating any such Company Takeover Proposal, Frustrating Transaction or inquiry and the material terms of any such Company Takeover Proposal, Frustrating Transaction or inquiry. The Stockholder shall keep Parent informed of the status and details (including amendments or proposed amendments) of any such Company Takeover Proposal, Frustrating Transaction or inquiry.
(e) The Stockholder shall not, nor shall the Stockholder authorize or permit any investment banker, attorney or other adviser or representative of, the Stockholder to, issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any other transactions contemplated by this Agreement or the Merger Agreement without the prior written consent of Parent, except as may be required by applicable law.
(f) The Stockholder shall use his reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most reasonably expeditious manner practicable, the transactions contemplated by this Agreement.
(g) The Stockholder hereby waives any rights to dissent from the Merger that the Stockholder may have, and agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or 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 Merger or any of the other transactions contemplated in this Agreement or the Merger Agreement.
(h) As soon as practicable after the date of this Agreement and in any event prior to the Effective Time (as defined in Section 1.03 of the Merger Agreement), each of Xxxxxxx X. Xxxxxxx and Xxxxxxxx Xxxx shall enter into a stockholders agreement, in form and substance mutually satisfactory to Parent and each such Stockholder, regarding certain restrictions on the transfer by each such Stockholder of the shares of Parent Common Stock received by such Stockholder in the Merger.
Appears in 1 contract
Samples: Stockholders Agreement (Coast Hotels & Casinos Inc)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(1) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to seek the Company Stockholder Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement, the Merger or any other Transaction is sought, the Stockholder shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Company Stockholder Approval.
(2) The Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKay, and Charles R. LotterXxxxxx, or any of them, and any inxxxxxxxx xxxxxxated ix xxxxxxx xx xxx of thxx, xxx xxx xxxxxidual 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 Stockholder, to vote the Subject Shares of the Stockholder, or grant a consent or approval in respect of the Subject Shares of the Stockholder in a manner consistent with this Section 3. 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) 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 5.
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company 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 of the Stockholder against (i) 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, (ii) any Acquisition Proposal and (iii) any amendment of the Company Charter or the Company By-laws or other proposal or transaction involving the Company or any Company Subsidiary, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify any provision of the Merger Agreement or any other Transaction Agreement, the Merger or any other Transaction or change in any manner the voting rights of any class of capital stock of the Company. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing.
(c) Other than this Agreement and except as provided in the next sentence, the Stockholder shall not (i) sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares to any person other than pursuant to the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares and shall not commit or agree to take any of the foregoing actions. Notwithstanding the foregoing, the following Transfers are expressly permitted:
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(1) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to seek vote upon the Company Stockholder Approval Merger and the Merger Agreement or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement, the Merger or any other Transaction transaction contemplated by the Merger Agreement is sought, the Stockholder shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Company Stockholder ApprovalMerger and the Merger Agreement.
(2) IRREVOCABLE PROXY The Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKay, William S. Boyd and Charles William R. LotterBoyd, or any of them, and any inxxxxxxxx xxxxxxated ix indivxxxxx xxxxxxxxxd in xxxxxxx 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 in a manner consistent with this Section 3. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's Stockholders' execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of the 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 hereofin accordance herewith. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e78.355(5) of the DGCLNevada Revised Statutes. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of Sections 3(a) and 3(b) in accordance with Section 5).
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval (including by written consent) is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares of the Stockholder against against, and shall not consent to (and shall cause the Subject Shares of the Stockholder 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 or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, joint venture, binding share exchange, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, (ii) any Acquisition Company Takeover Proposal and (as defined in Section 5.02(e) of the Merger Agreement) or (iii) any amendment of the Company Charter articles of incorporation or by-laws of the Company By-laws or other proposal proposal, action or transaction involving the Company or any Company Subsidiaryof its stockholders, which amendment or other proposal proposal, action or transaction would reasonably be expected to in any manner impede, frustrate, interfere with, delay, prevent or nullify any provision of the Merger Agreement or any other Transaction Agreement, the Merger or any other Transaction transaction contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement, or change in any manner the voting rights of any class of capital stock of the CompanyCompany (collectively, "Frustrating Transactions"). The Stockholder shall not commit or agree to take any action inconsistent with the foregoing.
(c) Other than this Agreement and except as provided in the next sentence, the The Stockholder shall not (i) sell, transfer, pledge, 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 of, of any Subject Shares or any interest therein, to any person (other than, if the transactions contemplated by the Merger Agreement are consummated, by operation of law in the Merger), (ii) other than pursuant to the Merger or (ii) express terms of this Agreement, enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or (iii) take any action which would, or could reasonably be expected to result in a diminution of the voting power represented by any Subject Shares, and shall not commit or agree to take any of the foregoing actions. Notwithstanding the foregoing.
(d) The Stockholder shall not, nor shall he authorize or permit any employee of, or any investment banker, attorney or other adviser or representative of, the following Transfers are expressly permitted:Stockholder to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action to facilitate, any inquiries with respect to a potential Company Takeover Proposal or Frustrating Transaction or the submission of any Company Takeover Proposal or Frustrating Transaction, (ii) enter into any agreement with respect to any Company Takeover Proposal or Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, or assist or participate in any effort or attempt by any person with respect to, any Company Takeover Proposal or Frustrating Transaction. The Stockholder promptly shall advise Parent orally and in writing of any Company Takeover Proposal or Frustrating Transaction or inquiry made to the Stockholder with respect to or that would reasonably be expected to lead to a Company Takeover Proposal or Frustrating Transaction, the identity of the person making or initiating any such Company Takeover Proposal, Frustrating Transaction or inquiry and the material terms of any such Company Takeover Proposal, Frustrating Transaction or inquiry. The Stockholder shall keep Parent informed of the status and details (including amendments or proposed amendments) of any such Company Takeover Proposal, Frustrating Transaction or inquiry.
(e) The Stockholder shall not, nor shall the Stockholder authorize or permit any investment banker, attorney or other adviser or representative of, the Stockholder to, issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any other transactions contemplated by this Agreement or the Merger Agreement without the prior written consent of Parent, except as may be required by applicable law.
(f) The Stockholder shall use his reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most reasonably expeditious manner practicable, the transactions contemplated by this Agreement.
(g) The Stockholder hereby waives any rights to dissent from the Merger that the Stockholder may have, and agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or 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 Merger or any of the other transactions contemplated in this Agreement or the Merger Agreement.
(h) As soon as practicable after the date of this Agreement and in any event prior to the Effective Time (as defined in Section 1.03 of the Merger Agreement), each of Michael J. Gaughan and Franklin Toti shall enter into a stockholdexx xxxxxxxxx, xx xorm axx xxxxxxxxx mutually satisfactory to Parent and each such Stockholder, regarding certain restrictions on the transfer by each such Stockholder of the shares of Parent Common Stock received by such Stockholder in the Merger.
Appears in 1 contract
Covenants of Each Stockholder. Each Until the termination of ----------------------------- this Agreement in accordance with Section 5, each Stockholder, in its capacity as such, agrees, severally and not jointly, covenants and agrees as follows:
(1a) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to seek vote upon the Company Stockholder Approval Merger and the Merger Agreement or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement, the Merger or any other Transaction is sought, the Stockholder shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Company Stockholder Approval.
(2) The Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKay, and Charles R. Lotter, or any of them, and any inxxxxxxxx xxxxxxated ix xxxxxxx 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 in a manner consistent with this Section 3. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon is sought from the Stockholder's execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of the 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 5.
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's voteCompany, consent or other approval is sought, the such Stockholder shall vote (or cause to be voted) the Subject Shares (and each class thereof) in favor of the Stockholder against (i) any merger agreement or merger (other than approval of the Merger and the approval and adoption of the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, (ii) any Acquisition Proposal and (iii) any amendment each of the Company Charter Transactions. Any such vote shall be cast or consent shall be given 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 or consent. 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) Such Stockholder hereby appoints Xxx Xxxxxxx and Xxxx Xxxxxxx, and each of them individually, as such Stockholder's proxy and attorney-in-fact, with full power of substitution and resubstitution, solely to vote or act by written consent prior to the termination of this Agreement with respect the Subject Shares in accordance with Section 3(a). This proxy is given to secure the performance of the duties of such Stockholder under this Agreement. Such Stockholder shall promptly cause a copy of this Agreement to be deposited with the Company By-laws at its principal place of business. Each Stockholder shall take such further action or execute such other proposal or transaction involving instruments as may be reasonably necessary to effectuate the Company or any Company Subsidiary, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify any provision intent of this proxy. The proxy and power of attorney granted pursuant to this Section 3(b) by each Stockholder shall be irrevocable during the Merger Agreement or any other Transaction term of this Agreement, the Merger or shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any other Transaction or change in any manner the voting rights of any class of capital stock of the Company. The and all prior proxies granted by such Stockholder shall not commit or agree to take any action inconsistent with the foregoingproxy hereby granted. The power of attorney granted by such Stockholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of such Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement.
(c) Other than this Agreement and except Except as provided in the next sentenceSection 3(b), the such Stockholder shall agrees not to, directly or indirectly, (i) sell, transfer, tender, pledge, encumber, assign or otherwise dispose of (including by gift) (collectively, a "Transfer"), ) or enter into any Contract-------- agreement, option or other arrangement (including any profit sharing arrangement) with respect to the to, or consent, a Transfer of, any or all of the Subject Shares to any person other than pursuant to the Merger person, that is inconsistent with its obligations under 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, with respect to any Subject Shares and shall not commit or agree to take any of the foregoing Subject Shares, in each case that is inconsistent with this Agreement.
(d) Such Stockholder hereby represents that it is not now engaged in discussions or negotiations with any party other than Parent with respect to any Acquisition Proposal.
(e) At the request of Parent, such Stockholder shall use all reasonable commercial efforts to take, or cause to be taken, all actions. Notwithstanding , and to do, or cause to be done, and to assist and cooperate with the foregoingother parties in doing, all things reasonably necessary, proper or advisable to carry out the following Transfers are expressly permitted:intent and purposes of this Agreement.
Appears in 1 contract
Samples: Voting Agreement (JPMorgan Chase Bank, National Association)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(1) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company Target called to seek the Company Target Stockholder Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement, the Merger or any other Transaction transaction contemplated by the Merger Agreement is sought, the Stockholder shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Target Subject Shares of the Stockholder in favor of granting adoption of the Company Stockholder ApprovalMerger Agreement and approval of the Merger and any other transactions contemplated by the Merger Agreement.
(2) The Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKay, Parent and Charles R. LotterMark Moran and C. Andrew Johns, or any of them, and any inxxxxxxxx xxxxxxated ix xxxxxxx individuxx xxxxxxxted in wxxxxxx xx xxx xxy 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 Target Subject Shares of the Stockholder, or grant a consent or approval in respect of the Target Subject Shares of the Stockholder Stockholder, in a manner consistent with this Section 3favor of adoption of the Merger Agreement and approval of the Merger and any other transactions contemplated by the Merger Agreement. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of the 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 54.
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company 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 of the Stockholder against (i) 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, (ii) any Acquisition Proposal and (iii) any amendment of the Company Charter or the Company By-laws or other proposal or transaction involving the Company or any Company Subsidiary, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify any provision of the Merger Agreement or any other Transaction Agreement, the Merger or any other Transaction or change in any manner the voting rights of any class of capital stock of the Company. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing.
(c) Other than this Agreement and except as provided in the next sentenceAgreement, the Stockholder shall not (i) sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Target Subject Shares to any person (other than pursuant to the Merger Merger), unless and until such person agrees, pursuant to a writing in customary form to which Parent is a party or a stated third-party beneficiary, to be bound by the terms of this Agreement, including without limitation the terms of Section 3(a)(2), to the same extent, and in the same manner, as if such person were explicitly named a Stockholder hereunder or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Target Subject Shares and shall not commit or agree to take any of the foregoing actions. Notwithstanding the foregoingThe Stockholder shall not, nor shall such Stockholder permit any entity under such Stockholder's control to, deposit any Target Subject Shares in a voting trust.
(c) The Stockholder shall not, nor shall it authorize or permit any employee or affiliate of, or any investment banker, financial advisor, attorney, accountant or other representative of, the following Transfers are expressly permitted:Stockholder to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), 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 or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person (other than Parent and any of its affiliates and representatives) any information with respect to, any Takeover Proposal. The Stockholder promptly shall advise Parent orally and in writing of any Takeover Proposal or inquiry made to the Stockholder with respect to or that could reasonably be expected to lead to any Takeover Proposal.
(d) The Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to 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.
(e) The Stockholder hereby consents to and approves the actions taken by the Board of Directors of Target in approving the Merger Agreement and this Agreement, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder hereby waives, and agrees not to exercise or assert, any appraisal or similar rights under Section 262 of the DGCL or other applicable law in connection with the Merger.
(f) If, at the time the Merger Agreement is submitted for adoption by the stockholders of Target, the Stockholder is an "affiliate" of Target for purposes of Rule 145 under the Securities Act, the Stockholder shall deliver to Parent at least 30 days prior to the Closing a written agreement substantially in the form attached as Exhibit A to the Merger Agreement.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(1) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to seek vote upon the Company Stockholder Approval Merger and the Merger Agreement or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement, the Merger or any other Transaction transaction contemplated by the Merger Agreement is sought, the Stockholder shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Company Stockholder ApprovalMerger and the Merger Agreement.
(2) IRREVOCABLE PROXY The Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKay, William S. Boyd and Charles William R. LotterBoyd, or any of them, and any inxxxxxxxx xxxxxxated ix xxxxxxx individuxx xxxxxxxxxx xn wrixxxx xx xxx of xx 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 in a manner consistent with this Section 3. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder's Stockholders' execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3(a) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of the 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 hereofin accordance herewith. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e78.355(5) of the DGCLNevada Revised Statutes. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of Sections 3(a) and 3(b) in accordance with Section 5).
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval (including by written consent) is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares of the Stockholder against against, and shall not consent to (and shall cause the Subject Shares of the Stockholder 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 or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, joint venture, binding share exchange, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, (ii) any Acquisition Company Takeover Proposal and (as defined in Section 5.02(e) of the Merger Agreement) or (iii) any amendment of the Company Charter articles of incorporation or by-laws of the Company By-laws or other proposal proposal, action or transaction involving the Company or any Company Subsidiaryof its stockholders, which amendment or other proposal proposal, action or transaction would reasonably be expected to in any manner impede, frustrate, interfere with, delay, prevent or nullify any provision of the Merger Agreement or any other Transaction Agreement, the Merger or any other Transaction transaction contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement, or change in any manner the voting rights of any class of capital stock of the CompanyCompany (collectively, "Frustrating Transactions"). The Stockholder shall not commit or agree to take any action inconsistent with the foregoing.
(c) Other than this Agreement and except as provided in the next sentence, the The Stockholder shall not (i) sell, transfer, pledge, 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 of, of any Subject Shares or any interest therein, to any person (other than, if the transactions contemplated by the Merger Agreement are consummated, by operation of law in the Merger), (ii) other than pursuant to the Merger or (ii) express terms of this Agreement, enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or (iii) take any action which would, or could reasonably be expected to result in a diminution of the voting power represented by any Subject Shares, and shall not commit or agree to take any of the foregoing actions. Notwithstanding the foregoing.
(d) The Stockholder shall not, nor shall he authorize or permit any employee of, or any investment banker, attorney or other adviser or representative of, the following Transfers are expressly permitted:Stockholder to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action to facilitate, any inquiries with respect to a potential Company Takeover Proposal or Frustrating Transaction or the submission of any Company Takeover Proposal or Frustrating Transaction, (ii) enter into any agreement with respect to any Company Takeover Proposal or Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, or assist or participate in any effort or attempt by any person with respect to, any Company Takeover Proposal or Frustrating Transaction. The Stockholder promptly shall advise Parent orally and in writing of any Company Takeover Proposal or Frustrating Transaction or inquiry made to the Stockholder with respect to or that would reasonably be expected to lead to a Company Takeover Proposal or Frustrating Transaction, the identity of the person making or initiating any such Company Takeover Proposal, Frustrating Transaction or inquiry and the material terms of any such Company Takeover Proposal, Frustrating Transaction or inquiry. The Stockholder shall keep Parent informed of the status and details (including amendments or proposed amendments) of any such Company Takeover Proposal, Frustrating Transaction or inquiry.
(e) The Stockholder shall not, nor shall the Stockholder authorize or permit any investment banker, attorney or other adviser or representative of, the Stockholder to, issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any other transactions contemplated by this Agreement or the Merger Agreement without the prior written consent of Parent, except as may be required by applicable law.
(f) The Stockholder shall use his reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most reasonably expeditious manner practicable, the transactions contemplated by this Agreement.
(g) The Stockholder hereby waives any rights to dissent from the Merger that the Stockholder may have, and agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or 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 Merger or any of the other transactions contemplated in this Agreement or the Merger Agreement.
(h) As soon as practicable after the date of this Agreement and in any event prior to the Effective Time (as defined in Section 1.03 of the Merger Agreement), each of Michael J. Gaughan and Franklin Toti shall enter into a stockholders xxxxxxxxx, xx xxxx and xxxxxxxxx xxxually satisfactory to Parent and each such Stockholder, regarding certain restrictions on the transfer by each such Stockholder of the shares of Parent Common Stock received by such Stockholder in the Merger.
Appears in 1 contract
Covenants of Each Stockholder. Each Subject to Section 5 hereof, each Stockholder, severally and not jointly, covenants and agrees as follows:
(a) The Stockholder hereby permits the Company, Parent and Sub to publish and disclose in the Proxy Materials (including all documents and schedules filed with the SEC) its identity and ownership of the Subject Shares and the nature of its commitments, arrangements and understandings under this Agreement.
(1) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to seek the approval of the Merger Agreement and the Merger (the "Company Stockholder Approval Approval") or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Operative Agreement, the Merger or any other Transaction is sought, the Stockholder shall, including by executing a written consent solicitation if requested by Parent, shall vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Company Stockholder Approval.
(2) The Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKay, Parent Robert P. Freeman and Charles R. LotterMurry N. Gunty, or any of them, and any inxxxxxxxx xxxxxxxxxx xxxxxxated ix xx xxxxxxx xx xxx 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 Stockholder, to vote the Subject Shares of the Stockholder, or grant a consent or approval in respect of the Subject Shares of the Stockholder in a manner consistent with this Section 3. 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(a3(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of 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, except as provided herein. 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(a3(b) and 3(b) in accordance with Section 53(c).
(bc) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company 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 of the Stockholder against (i) 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, (ii) any Acquisition Proposal takeover proposal (as defined in the Merger Agreement) and (iii) any amendment of the Company Charter certificate of incorporation or by-laws of the Company By-laws or other proposal or transaction involving the Company or any Company Subsidiaryof its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify any provision of the Merger Agreement or any other Transaction Operative Agreement, the Merger or any other Transaction or change in any manner the voting rights of any class of capital stock of the Company. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing.
(cd) Other than this Agreement and except as provided in the next sentenceAgreement, the Stockholder shall not (i) sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares to any person other than pursuant to the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares and shall not commit or agree to take any of the foregoing actions. Notwithstanding the foregoing.
(e) The Stockholder shall not, nor shall it authorize or permit any employee of, or any investment banker, attorney or other adviser or representative of, the following Transfers are expressly permitted:Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, any takeover proposal, (ii) enter into any agreement with respect to any takeover proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any takeover proposal. The Stockholder promptly shall advise Parent orally and in writing of any takeover proposal or inquiry made to the Stockholder with respect to or that could reasonably be expected to lead to any takeover proposal and the material terms of any such takeover proposal or inquiry.
(f) The Stockholder shall use its reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other Transactions.
(g) The Stockholder hereby consents to and approves the actions taken by the Board of Directors of the Company in approving the Merger Agreement, the Merger and the other Transactions. The Stockholder hereby waives, and agrees not to exercise or assent, any appraisal rights under Section 262 in connection with the Merger.
Appears in 1 contract
Samples: Support Agreement (Lazard Freres Real Estate Investors LLC)
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(1) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to seek the Company Stockholder Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement, the Merger or any other Transaction is sought, the Stockholder shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Company Stockholder Approval.
(2) The Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKayXxxxxx X. XxXxx, and Charles R. LotterXxxxxxx X. Xxxxxx, or any of them, and any inxxxxxxxx xxxxxxated ix xxxxxxx xx xxx 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 Stockholder, to vote the Subject Shares of the Stockholder, or grant a consent or approval in respect of the Subject Shares of the Stockholder in a manner consistent with this Section 3. 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) 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 5.
(b) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company 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 of the Stockholder against (i) 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, (ii) any Acquisition Proposal and (iii) any amendment of the Company Charter or the Company By-laws or other proposal or transaction involving the Company or any Company Subsidiary, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify any provision of the Merger Agreement or any other Transaction Agreement, the Merger or any other Transaction or change in any manner the voting rights of any class of capital stock of the Company. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing.
(c) Other than this Agreement and except as provided in the next sentence, the Stockholder shall not (i) sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), or enter into any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares to any person other than pursuant to the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares and shall not commit or agree to take any of the foregoing actions. Notwithstanding the foregoing, the following Transfers are expressly permitted:
(w) Transfers of Subject Shares to any other Stockholder;
(x) Transfers of up to an aggregate of 40,000 Subject Shares (for all Stockholders) to one or more members of one or more Stockholders' family and/or to one or more charities;
(y) in addition to any Transfers permitted pursuant to clause (x) above, Transfers of Subject Shares to (1) a transferee for estate planning purposes, (2) members of such Stockholder's family or trusts established for the benefit of such family members, or (3) a charitable foundation or trust, in each case only following the due execution and delivery to Parent by each such transferee of a counterpart to this Agreement; and
(z) upon the death of the Stockholder, the Transfer of Subject Shares to the executor of the estate of such Stockholder or to such Stockholder's heirs, devisees, or legatees.
Appears in 1 contract
Covenants of Each Stockholder. Each Stockholder, severally and not jointly, covenants and agrees as follows:
(1) At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company called to seek the Company Stockholder Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Agreement, any other Transaction Agreement, the Merger or any other Transaction is sought, the Stockholder shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting the Company Stockholder Approval.
(2) The Stockholder hereby irrevocably grants to, and appoints, Parent, Donald A. McKay, and Charles R. Lotter, or any of them, and any inxxxxxxxx xxxxxxated ix xxxxxxx 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 in a manner consistent with this Section 3. 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) 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 Until the termination of Sections 3(a) and 3(b) this Agreement in accordance with Section 5.
(b) , each Stockholder, in its capacity as such, agrees as follows: At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of stockholders of the Company Special Meeting or at any adjournment adjournment, postponement or continuation thereof or in any other circumstances occurring prior to the Special Meeting upon which the Stockholder's vote, consent a vote or other approval with respect to the Merger and the Merger Agreement is soughtsought by the Company from the Company's stockholders, the each Stockholder shall vote (or cause to be voted) the Subject Shares of the held by such Stockholder against (i) any merger agreement or merger (other than in favor of the approval of the Merger Agreement and the Merger), consolidation, combination, sale approval and adoption of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, Merger Agreement; and (ii) except with the written consent of Parent, against any Acquisition Proposal Alternative Proposal. Any such vote shall be cast in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and (iii) for purposes of recording the results of such vote. Each Stockholder agrees not to enter into any amendment agreement or commitment with any Person the effect of which would be inconsistent with or violative of the Company Charter or provisions and agreements contained in this Section 3(a). Each Stockholder hereby appoints Parent and any designee of Parent, and each of them individually, its proxies and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the Company By-laws or other proposal or transaction involving term of this Agreement with respect to the Company or any Company Subsidiary, which amendment or other proposal or transaction would Subject Shares in any manner impede, frustrate, prevent or nullify any provision accordance with Section 3(a). This proxy is given to secure the performance of the Merger Agreement duties of each Stockholder under this Agreement. Each Stockholder shall take such further action or any execute such other Transaction instruments as may be necessary to effectuate the intent of this proxy and power of attorney. The proxy and power of attorney granted hereunder by each Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by each Stockholder with respect to the Merger or any other Transaction or change in any manner the voting rights of any class of capital stock of the Companymatters contemplated by Section 3(a). The power of attorney granted by each Stockholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of such Stockholder. The proxies and powers of attorney granted hereunder shall cease to be irrevocable and shall terminate upon the termination of this Agreement. Each Stockholder agrees not commit to, directly or agree to take any action inconsistent with the foregoing.
(c) Other than this Agreement and except as provided in the next sentenceindirectly, the Stockholder shall not (i) sell, transfer, tender, pledge, encumber, assign or otherwise dispose of (including by gift) (collectively, a "Transfer"), ) or enter into any Contractagreement, option or other arrangement (including any profit sharing arrangement) with respect to, or consent to the a Transfer of, or convert or agree to convert, any or all of the Subject Shares to any person Person, other than pursuant to in accordance with the Merger Agreement, except in each case for Transfers (x) to any other Stockholder or (y) to any Person who executes and delivers to Parent and Merger Sub a voting agreement identical in form to this Agreement (except for the identity of the Stockholder) prior to or concurrently with the consummation of such Transfer or (ii) grant any proxies (other than the Company proxy card in connection with the Special Meeting if and to the extent such proxy is consistent with the Stockholder's obligations under Section 3(a) hereof), deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares Shares, in any case where such action would be inconsistent with or violative of the provisions and shall agreements contained in Section 3(a) hereof. Such Stockholder further agrees (A) not to commit or agree to take any of the foregoing actionsactions that are prohibited by clause (i) or (ii) of the preceding sentence and (B) not to take any action that would have the effect of preventing, impeding, interfering with or adversely affecting its ability to perform its obligations under this Agreement. Such Stockholder shall not, nor shall such Stockholder permit any controlled affiliate of such Stockholder to, nor shall such Stockholder act in concert with or permit any controlled affiliate to act in concert with any Person to make, or in any manner participate in, directly or indirectly, a "solicitation" (as such term is used in the rules of the Securities and Exchange Commission) of proxies or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any shares of Common Stock intended to facilitate any Alternative Proposal or to cause stockholders of the Company not to vote to approve and adopt the Merger Agreement. Such Stockholder shall not, and shall direct any investment banker, attorney, agent or other adviser or representative of such Stockholder not to, initiate or solicit (including by way of furnishing non-public information) or knowingly take any other action that constitutes, or is reasonably expected to lead to, an Alternative Proposal or engage in any substantive discussions or negotiations concerning, or provide any non-public information with respect to, an Alternative Proposal. Each Stockholder hereby represents that, as of the date hereof, it is not engaged in substantive discussions or negotiations with any party with respect to any Alternative Proposal. Notwithstanding anything to the foregoingcontrary in this Section 3, if and to the extent that, pursuant to the terms of the Merger Agreement, the following Transfers are expressly permitted:Company is permitted to provide information to and engage in substantive discussions and negotiations with any Person regarding an Alternative Proposal, then the Stockholders may provide information to and engage in substantive discussions and negotiations with such Person and its representatives.
Appears in 1 contract
Samples: Voting Agreement (Burlington Coat Factory Warehouse Corp)
