Covenants of Stockholder. Stockholder covenants and agrees as follows: (a) At any meeting of the stockholders of the Company called to vote on the Merger, the Merger Agreement or the other Transactions 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, the Merger Agreement or the other Transactions is sought, the Stockholder shall, (i) when a meeting is held, appear at such meeting or otherwise cause all Subject Shares that were outstanding on the record date for such meeting to be counted as present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted), including by executing a written consent, the Subject Shares that were outstanding on the record date for such meeting in favor of the adoption and approval of the Merger, the Merger Agreement and all of the Transactions. (b) The Stockholder hereby irrevocably grants to, and appoints, Parent and Sub, or any of them, and any individual designated in writing by any of them, and each of them individually, as the Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Stockholder, to vote the Subject Shares of the Stockholder that are outstanding on the applicable date, or grant a consent or approval in respect of the Subject Shares of the Stockholder that are outstanding on the applicable date 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 and power of attorney set forth in this Section 3(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy and power of attorney is given to secure the performance of the duties of the Stockholder under Section 3 of this Agreement. The Stockholder hereby further affirms that the irrevocable proxy and power of attorney is coupled with an interest and may under no circumstances be revoked. The Stockholder hereby ratifies and confirms all that such irrevocable proxy and attorney-in-fact 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 Delaware General Corporation Law. The irrevocable proxy and power of attorney granted hereunder shall automatically terminate upon the termination of both Section 3(a) and Section 3(c). (c) At any 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 with respect to any of the matters described in (x), (y) or (z) below, the Stockholder shall: (i) when a meeting is held, appear at such meeting or otherwise cause all Subject Shares that were outstanding on the applicable record date to be counted as present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted) the Subject Shares that were outstanding on the applicable record date against (x) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale or transfer of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, (y) any Acquisition Proposal and (z) any amendment of the Company Certificate 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, delay, frustrate, prevent or nullify the Merger or any provision of the Merger Agreement or any of the Transactions or change in any manner the voting rights of any class of the Company’s capital stock. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing. The Stockholder agrees that, as a condition to the Transfer, whether by operation of law or otherwise, of legal or beneficial ownership of the Subject Shares by the Stockholder to any person or entity, the Stockholder shall obtain such person’s or entity’s agreement in writing to be bound by the terms of Section 3. (d) Stockholder further agrees that, until the termination of this Agreement, Stockholder will not, and will not permit any entity under Stockholder’s control to, (i) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Rule 14A under the Exchange Act) with respect to an Acquisition Proposal (as defined below), (ii) initiate a stockholders’ vote with respect to an Acquisition Proposal or (iii) become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any voting securities of the Company with respect to an Acquisition Proposal. (e) Other than pursuant to this Agreement, the Stockholder shall not directly or indirectly (A) sell, transfer, pledge, encumber, 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 or Subject Options to any Person other than in accordance with the Merger or (B) grant any proxy, deposit any Subject Shares or Subject Options into any voting trust or enter into any other agreement or arrangement related to the voting of the Subject Shares or Subject Options, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or (C) commit or agree to take any of the foregoing actions. (f) The Stockholder shall use its commercially reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to the Merger, the Merger Agreement or any other Transaction without the prior consent of Parent, except for public statements made in press releases issued by the Company to the extent permitted by the Merger Agreement or as may be required by applicable Law (including, without limitation, making filings required by Sections 13(d) and 16 of the Exchange Act). (g) The Stockholder agrees to promptly notify Parent of the number of any Subject Shares acquired by the Stockholder after the date hereof. (h) The Stockholder hereby covenants and agrees that the Stockholder (a) except for any existing liens identified on Schedule A, has not entered into and shall not enter into any agreement that would restrict, limit or interfere with the performance of the Stockholder’s obligations hereunder and (b) shall not take any action that would reasonably be expected to make any of his, her or its representations or warranties contained herein untrue or incorrect or have the effect of preventing or disabling him, her or it from performing his, her or its obligations under this Agreement. (i) Stockholder shall not enter into any agreement or commitment with any Person the effect of which would be inconsistent with or violative of any of the provisions and agreements contained in this Agreement.
Appears in 4 contracts
Samples: Stockholder Voting Agreement (American Surgical Holdings Inc), Stockholder Voting Agreement (American Surgical Holdings Inc), Stockholder Voting Agreement (American Surgical Holdings Inc)
Covenants of Stockholder. Stockholder covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote on the Merger, the Merger Agreement or the other Transactions transactions contemplated thereby 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, the Merger Agreement or the other Transactions transactions contemplated by the Merger Agreement is sought, the Stockholder shall, (i) when a meeting is held, appear at such meeting or otherwise cause all Subject Shares that were outstanding on the record date for such meeting to be counted as or present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted), including by executing a written consent, the Subject Shares that were outstanding on the record date for such meeting in favor of the adoption and approval of the Merger, Merger and all of the Merger Agreement and all of the Transactionstransactions contemplated thereby.
(b) The Stockholder hereby irrevocably grants to, and appoints, Parent and Sub, or any of them, and any 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 that are outstanding on the applicable dateStockholder, or grant a consent or approval in respect of the Subject Shares of the Stockholder that are outstanding on the applicable date in a manner consistent with this Section 34 and to perform all other actions as are required, authorized or contemplated to be taken by Stockholder pursuant to this Agreement. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s 's execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy and power of attorney set forth in this Section 3(b4(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy and power of attorney is given to secure the performance of the duties of the Stockholder under Section 3 of this Agreement. The Stockholder hereby further affirms that the irrevocable proxy and power of attorney is coupled with an interest and may under no circumstances be revoked. The Stockholder hereby ratifies and confirms all that such irrevocable proxy and attorney-in-fact 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(e78.355(5) of the Delaware General Corporation LawNevada Revised Statutes. The irrevocable proxy and power of attorney granted hereunder shall automatically terminate upon the termination of both Section 3(aSections 4(a) and Section 3(c4(c).
(c) At So long as this Agreement is in effect, and for twelve (12) months thereafter, at any 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 is sought with respect to any of the matters described in (x), (y) or (z) belowsought, the Stockholder shall: (i) when a meeting is held, appear at such meeting or otherwise cause all Subject subject Shares that were outstanding on the applicable record date to be counted as or present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted) the Subject Shares that were outstanding on the applicable record date against (x) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale or transfer of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, (y) any Acquisition Company Takeover Proposal and (z) any amendment of the Company Certificate 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, delay, frustrate, prevent or nullify the Merger or any provision of the Merger Agreement or any of the Transactions transactions contemplated thereby (the "Transactions") or change in any manner the voting rights of any class of the Company’s capital stockCompany Capital Stock. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing. The Stockholder agrees that, as a condition to the Transfertransfer, whether by operation of law or otherwise, of legal or beneficial ownership of the Subject Shares by the Stockholder to any person or entityentity which is an Affiliate of the Stockholder or member of the Stockholder's family (an "Affiliated Person"), the Stockholder shall obtain such person’s 's or entity’s 's agreement in writing to be bound by the terms of this Section 34(c) and Section 5.
(d) Stockholder further agrees that, until the termination of this Agreement, Stockholder will not, and will not permit any entity under Stockholder’s control to, (i) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Rule 14A under the Exchange Act) with respect to an Acquisition Proposal (as defined below), (ii) initiate a stockholders’ vote with respect to an Acquisition Proposal or (iii) become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any voting securities of the Company with respect to an Acquisition Proposal.
(e) Other than pursuant to this Agreement, the Stockholder shall not directly or indirectly (A) sell, transfer, pledge, encumber, 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 or Subject Options to any Person other than in accordance with the Merger or (B) grant any proxy, deposit any Subject Shares or Subject Options into any voting trust or enter into any other agreement or arrangement related to the voting of the Subject Shares or Subject OptionsShares, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or (C) commit or agree to take any of the foregoing actions.
(e) The Stockholder shall, and shall cause his, her or its advisors, agents and representatives to, immediately cease any discussions or negotiations that may be ongoing with respect to a Company Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished to any third party. The Stockholder shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other adviser or representative of, the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of any Company Takeover Proposal, or take any action designed to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or that may reasonably be expected to lead to any Company Takeover Proposal, (iii) directly or indirectly enter into, participate in or continue any discussions or negotiations regarding, or furnish to any Person any information with respect to, or otherwise cooperate with or take any action to facilitate any Company Takeover Proposal or (iv) make a Company Takeover Proposal. The Stockholder shall as promptly as practical advise Parent orally and in writing of any Company Takeover Proposal or any inquiry with respect to or that could reasonably be expected to lead to any Company Takeover Proposal, and the identity of the person making any such Company Takeover Proposal or inquiry and the material terms of any such Company Takeover Proposal or inquiry. The Stockholder shall keep Parent fully informed on a current basis of the status of any such Company Takeover Proposal or inquiry and shall as promptly as practical notify Parent orally and in writing of any modification to the financial or other terms of such Company Takeover Proposal or inquiry and shall as promptly as practical provide to Parent a copy of all written material or correspondence (including e-mail) subsequently provided to or by the Company in connection with such Company Takeover Proposal or inquiry. Notwithstanding the foregoing, if the Board of Directors of the Company determines pursuant to and in accordance with Section 5.02 of the Merger Agreement to enter into discussions with a third party or any of its representatives (the "New Bidder") with respect to a Company Takeover Proposal, the Stockholder may also enter into discussions or negotiations with such New Bidder with respect to such Company Takeover Proposal, provided that the restrictions set forth in this Section 4(e) will continue to apply with respect to any other Person that makes an inquiry or proposal that constitutes or would reasonably be expected to lead to a Company Takeover Proposal, and will apply with respect to the New Bidder as soon as the Company ceases its discussions and negotiations with such New Bidder. Nothing contained in this Section 4(e) shall prohibit the Stockholder from responding to any unsolicited proposal or inquiry solely by advising the Person making such proposal or inquiry of the terms of this Section 4(e).
(f) The Stockholder shall use its commercially reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement, the Merger, the Merger Agreement and the other Transactions. The Stockholder shall not issue any press release or make any other public statement with respect to the Merger, the Merger Agreement or any other Transaction without the prior consent of Parent, except for public statements made in press releases issued by the Company to the extent permitted by the Merger Agreement or as may be required by applicable Law (including, without limitation, making filings required by Sections 13(d) and 16 of the Exchange Act).
(g) The Stockholder hereby consents to and approves the actions taken by the Company Board in approving the Merger, the Merger Agreement and the other Transactions. The Stockholder hereby waives, and agrees not to exercise or assert, any dissenter's rights under Sections 92A.300 to 92A.500 of the Nevada Revised Statutes in connection with the Merger.
(h) The Stockholder agrees to promptly notify Parent of the number of any Subject Shares acquired by the Stockholder after the date hereof.
(hi) The Stockholder hereby covenants and agrees that the Stockholder (a) except for any existing liens identified on Schedule A, has not entered into and shall not enter into any agreement that would restrict, limit or interfere with the performance of the Stockholder’s 's obligations hereunder and (b) shall not knowingly take any action that would reasonably be expected to make any of his, her or its representations or warranties contained herein untrue or incorrect or have the effect of preventing or disabling him, her or it from performing his, her or its obligations under this Agreement.
(i) Stockholder shall not enter into any agreement or commitment with any Person the effect of which would be inconsistent with or violative of any of the provisions and agreements contained in this Agreement.
Appears in 2 contracts
Samples: Stockholder Voting and Option Agreement (Warrantech Corp), Stockholder Voting and Option Agreement (Warrantech Corp)
Covenants of Stockholder. Each Stockholder covenants and agrees agrees, severally and not jointly, with respect to itself as follows:
(a) At Throughout the term of this Agreement, at any meeting of the stockholders of the Company (including, without limitation, any Company Stockholders’ Meeting) called to vote on upon (x) any of the Mergertransactions contemplated by the Reorganization Agreement (including, without limitation, the Company Stockholder Approvals) or (y) the Reincorporation Merger Agreement (including the approval of the adoption of an agreement and plan of merger entered into in connection therewith) (such approvals in clause (x) or (y), the other Transactions “Stockholder Approval Matters”), or at any postponement or adjournment thereof, in accordance with the terms of the Reorganization Agreement or in accordance with the terms of the Reincorporation Merger, or in any other circumstances upon which a vote, consent adoption or other approval (including by written consent) with respect to any of the Merger, the Merger Agreement or the other Transactions Stockholder Approval Matters is sought, the such Stockholder shall, shall (i) when a meeting is held, appear at such meeting or otherwise cause all its Subject Shares that were outstanding on the record date for such meeting to be counted as present thereat for purposes of establishing calculating a quorum, and (ii) vote (or cause to be voted), including by executing a written consent, the Subject Shares that were outstanding on the record date for such meeting in favor of the adoption and approval of the Merger, the Merger Agreement and all of the Transactions.
(b) The Stockholder hereby irrevocably grants to, and appoints, Parent and Sub, or any of them, and any individual designated in writing by any of them, and each of them individually, as the Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Stockholder, to vote the Subject Shares of the Stockholder that are outstanding on the applicable date, or grant a consent or approval in respect of the Subject Shares of the Stockholder that are outstanding on the applicable date 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 and power of attorney set forth in this Section 3(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy and power of attorney is given to secure the performance of the duties of the Stockholder under Section 3 of this Agreement. The Stockholder hereby further affirms that the irrevocable proxy and power of attorney is coupled with an interest and may under no circumstances be revoked. The Stockholder hereby ratifies and confirms all that such irrevocable proxy and attorney-in-fact 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 Delaware General Corporation Law. The irrevocable proxy and power of attorney granted hereunder shall automatically terminate upon the termination of both Section 3(a) and Section 3(c).
(c) At any 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 with respect to any of the matters described in (x), (y) or (z) below, the Stockholder shall: (i) when a meeting is held, appear at such meeting or otherwise cause all Subject Shares that were outstanding on the applicable record date to be counted as present thereat for purposes of establishing a quorum, quorum and (ii) vote (or cause to be voted) the all of such Stockholder’s Subject Shares that were outstanding on in favor of the applicable record date against Stockholder Approval Matters; provided, however, if the Company shall have made a Company Adverse Recommendation Change solely in response to a Superior Company Proposal in accordance with the terms of the Reorganization Agreement, the Stockholders shall be released from their obligations pursuant to this Section 3(a) with respect to any meeting of stockholders of the Company called to vote upon the matters included in clause (x) any merger agreement or merger of the definition of “Stockholder Approval Matters”.
(other than b) From the Merger date hereof until the earliest of (x) the termination of the Reorganization Agreement and the Merger), consolidation, combination, sale or transfer of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Companyin accordance with its terms, (y) any Acquisition Proposal the consummation of the Reincorporation Merger, and (z) the twelve (12) month anniversary of the Split-Off Effective Time, at any meeting of the stockholders of the Company or at any postponement or adjournment thereof or in any other circumstances upon which a vote, adoption or other approval is sought, each Stockholder shall (i) appear at such meeting or otherwise cause its Subject Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted) all of such Stockholder’s Subject Shares (1) against any Alternative Company Transaction Proposal or any agreement relating thereto and (2) against any amendment of the Company Certificate Articles or the Company By-laws Bylaws (other than pursuant to or as permitted under the Reorganization Agreement or pursuant to the terms of the Reincorporation Merger) or any other proposal proposal, action, agreement or transaction involving which, in the case of this clause (2), would reasonably be expected to (A) result in a breach of any covenant, agreement, obligation, representation or warranty of the Company contained in the Reorganization Agreement, any agreement or any Company Subsidiaryplan of merger entered into in connection with the Reincorporation Merger, which amendment or other proposal this Agreement or transaction would of such Stockholder contained in any manner this Agreement, (B) prevent, impede, interfere or be inconsistent with, delay, frustrate, prevent discourage or nullify adversely affect the timely consummation of the transactions contemplated by the Reorganization Agreement or the Reincorporation Merger or any provision of the Merger Agreement or any of the Transactions or (C) change in any manner the voting rights of any class shares of Company Capital Stock (other than pursuant to or as permitted under the Reorganization Agreement or pursuant to the terms of the Reincorporation Merger) (the matters described in clauses (1) and (2), collectively, the “Vote-Down Matters”); provided, however, if the Company shall have made a Company Adverse Recommendation Change solely in response to a Superior Company Proposal in accordance with the terms of the Reorganization Agreement, the Stockholders shall be released from their obligations pursuant to this Section 3(b) with respect to any meeting of stockholders of the Company’s capital stock.
(c) Each Stockholder shall not, nor shall it authorize or permit any of its Affiliates or any of its or their respective directors, officers or employees, as applicable, or any of its or their respective financial advisors, legal counsel, financing sources, accountants or other advisors, agents or representatives (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate or facilitate (including by way of furnishing information), induce or encourage any inquiries or the making of any proposal or offer (including any proposal or offer to the Company Stockholders) that constitutes or would reasonably be expected to lead to an Alternative Company Transaction 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 cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Company Transaction Proposal. The Each Stockholder shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Person with respect to any Alternative Company Transaction Proposal and will enforce and will not waive any provisions of, any confidentiality or standstill agreement (or any similar agreement) to which the Stockholder is a party relating to any such Alternative Company Transaction Proposal, and will promptly request each Person that has heretofore executed a confidentiality agreement with such Stockholder in connection with its consideration of any Alternative Company Transaction Proposal to return or destroy all confidential information furnished prior to the execution of this Agreement to or for the benefit of such Person by or on behalf of the Company or any of its Subsidiaries. Notwithstanding the foregoing, in the event the Company is permitted to take the actions set forth in Section 5.2(b)(i) and (ii) of the Reorganization Agreement, Xxxxxx Xxxxxx (“Xxxxxx”) shall be released from the restrictions set forth in clause (ii) of the first sentence of this Section 3(c).
(d) Throughout the term of this Agreement, other than pursuant to and as permitted by the terms of the Reorganization Agreement, the Reincorporation Merger and this Agreement, such Stockholder shall not, and shall not commit or agree to take any action inconsistent with the foregoing. The Stockholder agrees thatto, as a condition to the Transfer, whether by operation of law directly or otherwise, of legal or beneficial ownership of the Subject Shares by the Stockholder to any person or entity, the Stockholder shall obtain such person’s or entity’s agreement in writing to be bound by the terms of Section 3.
(d) Stockholder further agrees that, until the termination of this Agreement, Stockholder will not, and will not permit any entity under Stockholder’s control toindirectly, (i) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Rule 14A under the Exchange Act) with respect to an Acquisition Proposal (as defined below), (ii) initiate a stockholders’ vote with respect to an Acquisition Proposal or (iii) become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any voting securities of the Company with respect to an Acquisition Proposal.
(e) Other than pursuant to this Agreement, the Stockholder shall not directly or indirectly (A) sell, transfer, pledge, encumber, assign exchange, assign, convert, tender or otherwise dispose of (including by gift, merger or otherwise by operation of Law) Beneficial Ownership of (collectively, “Transfer”), or enter into consent to or permit any Contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares (or Subject Options any interest therein) or any rights to acquire any Person other than in accordance with securities or equity interests of the Merger or (B) grant any proxyCompany, deposit any Subject Shares or Subject Options into any voting trust or enter into any Contract, option, call or other agreement or arrangement related with respect to the voting Transfer (including any profit sharing or other derivative arrangement) of the any Subject Shares (or Subject Optionsany interest therein) or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or rights to acquire any securities or equity interests of the Company, other than this Agreement, provided, that such Stockholder may Transfer any Subject Shares pursuant to any sale, transfer, contract or other disposition (which, for the avoidance of doubt, excludes any conversion) (A) to an immediate family member of such Stockholder, (B) by will or for tax or estate planning purposes, (C) commit to a trust or other entity established for the benefit of such Stockholder and/or for the benefit of one or more members of such Stockholder’s immediate family, (D) to an entity wholly-owned by such Stockholder, (E) to any bona fide pledgee upon any default or foreclosure under any margin loan arrangements in existence as of the date of this Agreement to which the Subject Shares are subject (the “Margin Loan Arrangements”), which arrangements shall not be modified without the prior written consent of Liberty; provided, that, in the case of clauses (A) through (D), any such transferee shall agree (in writing, pursuant to a joinder agreement or other instrument, reasonably acceptable to and in favor of each of the Company and Liberty) to take such Subject Shares subject to the transferor’s obligations under this Agreement (a “Permitted Transferee”); provided, further, that the death of any Stockholder who is an individual person shall itself not be a sale, transfer or disposition of any Subject Shares prohibited by this Section 3(d) as long as another Stockholder, a Permitted Transferee or the foregoing actions.
(f) The Stockholder’s estate continues to own such Subject Shares and agrees to perform such Stockholder’s obligations hereunder. Each Stockholder shall use its commercially reasonable best efforts to takeprevent an event of default or foreclosure under the Margin Loan Arrangements, including, but not limited to, by satisfying any margin call with cash. If any Subject Shares are Transferred pursuant to clause (E) above, Xxxxxx will immediately take the actions set forth on Schedule A-3 hereto. At the request of Liberty or cause the Company, each certificate or other instrument representing any Subject Shares shall bear a legend that such Subject Shares are subject to be takenthe provisions of this Agreement, all actionsincluding this Section 3(d).
(e) Such Stockholder shall not, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. The such Stockholder shall not permit any of its Subsidiaries to, or authorize or permit any Affiliate, director, officer, trustee, employee or partner of such Stockholder or any of its Subsidiaries or any Representative of such Stockholder or any of its Subsidiaries to, directly or indirectly, issue any press release or make any other public statement with respect to the MergerReorganization Agreement, this Agreement, the Reincorporation Merger Agreement or any of the other Transaction transactions contemplated by the Reorganization Agreement, by any agreement and plan of merger entered into in connection with the Reincorporation Merger or by this Agreement without the prior written consent of ParentLiberty and the Company, except for public statements made in press releases issued by the Company to the extent permitted by the Merger Agreement or as may be required by applicable Law or court process, provided that the foregoing shall not apply to any disclosure required to be made by such Stockholder to the SEC or other Governmental Entity, including any amendment of any Statement on Schedule 13D, so long as such disclosure is consistent with the terms of this Agreement, the Reorganization Agreement, and the Reincorporation Merger and the public statements made by the Company and Liberty pursuant to the Reorganization Agreement, this Agreement and the Reincorporation Merger. In connection with any such publication and disclosure by such Stockholder, such Stockholder will coordinate and consult with Liberty and the Company before issuing, and give Liberty and the Company the opportunity to review and comment upon, giving due consideration to all reasonable additions, deletions or changes suggested in connection therewith, such publications or disclosures.
(includingf) Such Stockholder hereby agrees that, without limitationin the event (i) of any stock dividend or other distribution, making filings required stock split, reverse stock split, recapitalization, reclassification, reorganization, combination or other like change, of or affecting the Subject Shares or (ii) that such Stockholder purchases or otherwise acquires Beneficial Ownership or record ownership of or an interest in, or acquires the right to vote or share in the voting of, any shares of Company Class B Stock (other than shares of Company Capital Stock owned by Sections 13(dthe Company 401(k) Plan), in each case after the execution of this Agreement (including by conversion, operation of Law or otherwise) (collectively, the “New Shares”), such Stockholder shall deliver promptly to Liberty and 16 the Company written notice of such event which notice shall state the Exchange Act)number of New Shares so acquired or received or over which such Stockholder obtained the right to vote. Such Stockholder agrees that any New Shares shall be subject to the terms of this Agreement, including all covenants, agreements, obligations, representations and warranties set forth herein, 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. Such Stockholder agrees that this Agreement and the obligations hereunder shall be binding upon any Person to which record or Beneficial Ownership of such Stockholder’s Subject Shares shall pass, whether by operation of Law or otherwise, including such Stockholder’s heirs, guardians, administrators or successors, and such Stockholder further agrees to take all actions necessary to effectuate the foregoing. For the avoidance of doubt, all Company Capital Stock issued to a Stockholder in connection with the Company Reclassification and the Auto Conversion will constitute Subject Shares for purposes of this Agreement.
(g) The Stockholder agrees to promptly notify Parent of the number of any Subject Shares acquired by the Stockholder after the date hereof.
(h) The Each Stockholder hereby covenants and agrees that the Stockholder (a) except for any existing liens identified on Schedule A, has not entered into and shall not enter into any agreement that would restrict, limit or interfere with the performance of the Stockholder’s obligations hereunder and (b) shall not take any action that would reasonably be expected to make any of his, her or its representations or warranties contained herein untrue or incorrect or have the effect of preventing or disabling him, her or it from performing his, her or its obligations under this Agreement.
(i) Stockholder shall irrevocably and unconditionally waives, and agrees not enter into to assert or perfect, any agreement rights of appraisal, rights to dissent or commitment other rights with any Person the effect of which would be inconsistent with or violative of respect to any of the provisions Stockholder Approval Matters (including the Reincorporation Merger) that such Stockholder may have by virtue of ownership of the Subject Shares, including without limitation any right of dissent under Sec. 10.06.574 - .580 of the ACC, and agreements contained in this Agreement(ii) acknowledges that Liberty and the Company will reasonably rely to their detriment upon such waiver.
Appears in 2 contracts
Samples: Voting Agreement (General Communication Inc), Voting Agreement (Duncan Ronald A)
Covenants of Stockholder. Stockholder covenants with Issuer that, without the consent of Issuer, for a period commencing on the date hereof and agrees continuing through the fifth anniversary of the date hereof Stockholder and Affiliates, singly or as followspart of a group, directly or indirectly, through one or more intermediaries or otherwise, will not:
(a) At purchase, acquire or own, or offer, propose or agree to purchase, acquire or own, directly or indirectly, any meeting securities of Issuer which are entitled to vote generally in the election of directors (other than upon occurrence of a contingency) ("Voting Securities"), any option, warrant or other right to acquire, directly or indirectly, any Voting Securities or any securities which are convertible into or exchangeable or exercisable for Voting Securities, if, immediately after such purchase or acquisition, Stockholder and Affiliates would beneficially own, in the aggregate, Voting Securities representing an amount (the "Threshold Amount") which exceeds the greater of 20% of Issuer's outstanding Voting Securities or such percentage of the stockholders Issuer's outstanding Voting Securities which the sum of the Company called to vote on the Merger, the Merger Agreement or the other Transactions 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, the Merger Agreement or the other Transactions is sought, the Stockholder shall, (i) when a meeting is held, appear at such meeting or otherwise cause all Subject Shares that were outstanding on the record date for such meeting to be counted as present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted), including by executing a written consent, the Subject Shares that were outstanding on the record date for such meeting in favor of the adoption and approval of the Merger, the Merger Agreement and all of the Transactions.
(b) The Stockholder hereby irrevocably grants to, and appoints, Parent and Sub, or any of them, and any individual designated in writing by any of them, and each of them individually, as the Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Stockholder, to vote the Subject Shares of the Stockholder that are outstanding on the applicable date, or grant a consent or approval in respect of the Subject Shares of the Stockholder that are outstanding on the applicable date 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 and power of attorney set forth in this Section 3(b) is given issued in connection with the execution of the Merger Agreement, and that such irrevocable proxy and power of attorney is given to secure the performance of the duties of the Stockholder under Section 3 of this Agreement. The Stockholder hereby further affirms that the irrevocable proxy and power of attorney is coupled with an interest and may under no circumstances be revoked. The Stockholder hereby ratifies and confirms all that such irrevocable proxy and attorney-in-fact 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 Delaware General Corporation Law. The irrevocable proxy and power of attorney granted hereunder shall automatically terminate upon the termination of both Section 3(a) and Section 3(c).
(c) At any 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 with respect to any of the matters described in (x), (y) or (z) below, the Stockholder shall: (i) when a meeting is held, appear at such meeting or otherwise cause all Subject Shares that were outstanding on the applicable record date to be counted as present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted) the Subject Shares that were outstanding on the applicable record date against (x) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale or transfer of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by Shares issuable upon the Company, (y) any Acquisition Proposal and (z) any amendment conversion of the Company Certificate Notes issued in connection with the Purchase Agreement (taking into account any Voting Securities into which such Notes (or any Preferred Stock for which such Notes are exchanged) may from time to time be convertible as a result of application of the anti-dilution provisions applicable to the Notes or the Company By-laws or other proposal or transaction involving Preferred Stock) would constitute on a fully diluted basis on the Company or any Company Subsidiary, which amendment or other proposal or transaction would in any manner impede, delay, frustrate, prevent or nullify date of the Merger or any provision later of the closings of the transactions contemplated by the Merger Agreement and the Purchase Agreement; provided, however, that notwithstanding anything to the contrary contained herein, the foregoing restriction shall not be deemed to be violated or applicable if Stockholder is not otherwise in breach of this Agreement and (i) the percentage of the outstanding Voting Securities beneficially owned, in the aggregate, by Stockholder and Affiliates is increased as a result of a recapitalization of Issuer, a repurchase of securities by Issuer or any other action taken solely by Issuer, (ii) a benefit plan maintained for employees of Stockholder and Affiliates acquires up to 1% (in the aggregate) of the Transactions outstanding Common Stock solely for purposes of investment, or change (iii) Issuer breaches its obligation under Section 4(b) hereof; and provided, further, that so long as Stockholder is not otherwise in breach of this Agreement, (i) if a third party (which term for purposes of this Agreement shall include any manner the voting rights of any class group as defined in Section 13(d)(3) of the Company’s capital stock. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing. The Stockholder agrees thatSecurities Exchange Act of 1934, as amended) makes a condition tender or exchange offer which, if consummated, would result in such third party owning at least a majority of the Voting Securities and Issuer's Board of Directors does not oppose such tender or exchange offer at the time at which it is required by applicable securities laws to make a recommendation regarding such tender or exchange offer to Issuer's stockholders, then Stockholder may make and consummate a tender or exchange offer for a number of Voting Securities equal to or greater than the Transfernumber of Voting Securities which such third party seeks to purchase pursuant to such tender or exchange offer, whether by operation of law or otherwise, of legal or (ii) if a third party acquires beneficial ownership of at least 30% of the Subject Shares by the outstanding Voting Securities, and Stockholder to any person or entity, the Stockholder shall obtain such person’s or entity’s agreement in writing to be bound is prohibited by the terms of Section 3.
(d) Stockholder further agrees that, until the termination of this Agreement, Stockholder will not, and will not permit any entity under Stockholder’s control to, (i) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Rule 14A under the Exchange Act) with respect to an Acquisition Proposal (as defined below), (ii) initiate a stockholders’ vote with respect to an Acquisition Proposal or (iii) become a member of a “group” (as such term is used in Section 13(d) Agreement from acquiring more than 30% of the Exchange Act) with respect to any voting securities of the Company with respect to an Acquisition Proposal.
(e) Other than pursuant to this Agreement, the Stockholder shall not directly or indirectly (A) sell, transfer, pledge, encumber, 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 or Subject Options to any Person other than in accordance with the Merger or (B) grant any proxy, deposit any Subject Shares or Subject Options into any voting trust or enter into any other agreement or arrangement related to the voting of the Subject Shares or Subject Options, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or (C) commit or agree to take any of the foregoing actions.
(f) The Stockholder shall use its commercially reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to the Merger, the Merger Agreement or any other Transaction without the prior consent of Parent, except for public statements made in press releases issued by the Company to the extent permitted by the Merger Agreement or as may be required by applicable Law (including, without limitation, making filings required by Sections 13(d) and 16 of the Exchange Act).
(g) The Stockholder agrees to promptly notify Parent of the number of any Subject Shares acquired by the Stockholder after the date hereof.
(h) The Stockholder hereby covenants and agrees that the Stockholder (a) except for any existing liens identified on Schedule A, has not entered into and shall not enter into any agreement that would restrict, limit or interfere with the performance of the Stockholder’s obligations hereunder and (b) shall not take any action that would reasonably be expected to make any of his, her or its representations or warranties contained herein untrue or incorrect or have the effect of preventing or disabling him, her or it from performing his, her or its obligations under this Agreement.
(i) Stockholder shall not enter into any agreement or commitment with any Person the effect of which would be inconsistent with or violative of any of the provisions and agreements contained in this Agreement.outstanding Voting Securi-
Appears in 1 contract
Samples: Merger Agreement (Tribune Co)
Covenants of Stockholder. Stockholder covenants with Issuer that, without the consent of Issuer, for a period commencing on the date hereof and agrees continuing through the fifth anniversary of the date hereof Stockholder and Affiliates, singly or as followspart of a group, directly or indirectly, through one or more intermediaries or otherwise, will not:
(a) At purchase, acquire or own, or offer, propose or agree to purchase, acquire or own, directly or indirectly, any meeting securities of Issuer which are entitled to vote generally in the election of directors (other than upon occurrence of a contingency) ("Voting Securities"), any option, warrant or other right to acquire, directly or indirectly, any Voting Securities or any securities which are convertible into or exchangeable or exercisable for Voting Securities, if, immediately after such purchase or acquisition, Stockholder and Affiliates would beneficially own, in the aggregate, Voting Securities representing an amount (the "Threshold Amount") which exceeds the greater of 20% of Issuer's outstanding Voting Securities or such percentage of the stockholders Issuer's outstanding Voting Securities which the sum of the Company called to vote on the Merger, the Merger Agreement or the other Transactions 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, the Merger Agreement or the other Transactions is sought, the Stockholder shall, (i) when a meeting is held, appear at such meeting or otherwise cause all Subject Shares that were outstanding on the record date for such meeting to be counted as present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted), including by executing a written consent, the Subject Shares that were outstanding on the record date for such meeting in favor of the adoption and approval of the Merger, the Merger Agreement and all of the Transactions.
(b) The Stockholder hereby irrevocably grants to, and appoints, Parent and Sub, or any of them, and any individual designated in writing by any of them, and each of them individually, as the Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Stockholder, to vote the Subject Shares of the Stockholder that are outstanding on the applicable date, or grant a consent or approval in respect of the Subject Shares of the Stockholder that are outstanding on the applicable date 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 and power of attorney set forth in this Section 3(b) is given issued in connection with the execution of the Merger Agreement, and that such irrevocable proxy and power of attorney is given to secure the performance of the duties of the Stockholder under Section 3 of this Agreement. The Stockholder hereby further affirms that the irrevocable proxy and power of attorney is coupled with an interest and may under no circumstances be revoked. The Stockholder hereby ratifies and confirms all that such irrevocable proxy and attorney-in-fact 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 Delaware General Corporation Law. The irrevocable proxy and power of attorney granted hereunder shall automatically terminate upon the termination of both Section 3(a) and Section 3(c).
(c) At any 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 with respect to any of the matters described in (x), (y) or (z) below, the Stockholder shall: (i) when a meeting is held, appear at such meeting or otherwise cause all Subject Shares that were outstanding on the applicable record date to be counted as present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted) the Subject Shares that were outstanding on the applicable record date against (x) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale or transfer of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by Shares issuable upon the Company, (y) any Acquisition Proposal and (z) any amendment conversion of the Company Certificate Notes issued in connection with the Purchase Agreement (taking into account any Voting Securities into which such Notes (or any Preferred Stock for which such Notes are exchanged) may from time to time be convertible as a result of application of the anti-dilution provisions applicable to the Notes or the Company By-laws or other proposal or transaction involving Preferred Stock) would constitute on a fully diluted basis on the Company or any Company Subsidiary, which amendment or other proposal or transaction would in any manner impede, delay, frustrate, prevent or nullify date of the Merger or any provision later of the closings of the transactions contemplated by the Merger Agreement and the Purchase Agreement; provided, however, that notwithstanding anything to the contrary contained herein, the foregoing restriction shall not be deemed to be violated or applicable if Stockholder is not otherwise in breach of this Agreement and (i) the percentage of the outstanding Voting Securities beneficially owned, in the aggregate, by Stockholder and Affiliates is increased as a result of a recapitalization of Issuer, a repurchase of securities by Issuer or any other action taken solely by Issuer, (ii) a benefit plan maintained for employees of Stockholder and Affiliates acquires up to 1% (in the aggregate) of the Transactions outstanding Common Stock solely for purposes of investment, or change (iii) Issuer breaches its obligation under Section 4(b) hereof; and provided, further, that so long as Stockholder is not otherwise in any manner the voting rights of any class of the Company’s capital stock. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing. The Stockholder agrees that, as a condition to the Transfer, whether by operation of law or otherwise, of legal or beneficial ownership of the Subject Shares by the Stockholder to any person or entity, the Stockholder shall obtain such person’s or entity’s agreement in writing to be bound by the terms of Section 3.
(d) Stockholder further agrees that, until the termination breach of this Agreement, Stockholder will not, and will not permit any entity under Stockholder’s control to, (i) solicit proxies or become if a “participant” in a “solicitation” third party (which term for purposes of this Agreement shall include any group as such terms are defined in Rule 14A under the Exchange Act) with respect to an Acquisition Proposal (as defined below), (ii) initiate a stockholders’ vote with respect to an Acquisition Proposal or (iii) become a member of a “group” (as such term is used in Section 13(d13(d)(3) of the Securities Exchange ActAct of 1934, as amended) with respect to any voting securities makes a tender or exchange offer which, if consummated, would result in such third party owning at least a majority of the Company with respect to an Acquisition Proposal.
(e) Other than pursuant to this Agreement, Voting Securities and Issuer's Board of Directors does not oppose such tender or exchange offer at the Stockholder shall not directly or indirectly (A) sell, transfer, pledge, encumber, 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 or Subject Options to any Person other than in accordance with the Merger or (B) grant any proxy, deposit any Subject Shares or Subject Options into any voting trust or enter into any other agreement or arrangement related to the voting of the Subject Shares or Subject Options, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or (C) commit or agree to take any of the foregoing actions.
(f) The Stockholder shall use its commercially reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to the Merger, the Merger Agreement or any other Transaction without the prior consent of Parent, except for public statements made in press releases issued by the Company to the extent permitted by the Merger Agreement or as may be time at which it is required by applicable Law (including, without limitation, making filings required by Sections 13(d) and 16 of the Exchange Act).
(g) The Stockholder agrees to promptly notify Parent of the number of any Subject Shares acquired by the Stockholder after the date hereof.
(h) The Stockholder hereby covenants and agrees that the Stockholder (a) except for any existing liens identified on Schedule A, has not entered into and shall not enter into any agreement that would restrict, limit or interfere with the performance of the Stockholder’s obligations hereunder and (b) shall not take any action that would reasonably be expected securities laws to make any of his, her a recommendation regarding such tender or its representations or warranties contained herein untrue or incorrect or have the effect of preventing or disabling him, her or it from performing his, her or its obligations under this Agreement.
(i) Stockholder shall not enter into any agreement or commitment with any Person the effect of which would be inconsistent with or violative of any of the provisions and agreements contained in this Agreement.exchange offer
Appears in 1 contract
Samples: Standstill Agreement (Tribune Co)
Covenants of Stockholder. Stockholder covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote on the Merger, the Merger Agreement or the other Transactions transactions contemplated thereby 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, the Merger Agreement or the other Transactions transactions contemplated by the Merger Agreement is sought, the Stockholder shall, (i) when a meeting is held, appear at such meeting or otherwise cause all Subject Shares that were outstanding on the record date for such meeting to be counted as or present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted), including by executing a written consent, the Subject Shares that were outstanding on the record date for such meeting in favor of the adoption and approval of the Merger, Merger and all of the Merger Agreement and all of the Transactionstransactions contemplated thereby.
(b) The Stockholder hereby irrevocably grants to, and appoints, Parent and Sub, or any of them, and any 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 that are outstanding on the applicable dateStockholder, or grant a consent or approval in respect of the Subject Shares of the Stockholder that are outstanding on the applicable date in a manner consistent with this Section 33 and to perform all other actions as are required, authorized or contemplated to be taken by Stockholder pursuant to this Agreement. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s 's execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy and power of attorney set forth in this Section 3(b) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy and power of attorney is given to secure the performance of the duties of the Stockholder under Section 3 of this Agreement. The Stockholder hereby further affirms that the irrevocable proxy and power of attorney is coupled with an interest and may under no circumstances be revoked. The Stockholder hereby ratifies and confirms all that such irrevocable proxy and attorney-in-fact 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(e78.355(5) of the Delaware General Corporation LawNevada Revised Statutes. The irrevocable proxy and power of attorney granted hereunder shall automatically terminate upon the termination of both Section Sections 3(a) and Section 3(c).
(c) At So long as this Agreement is in effect, and for twelve (12) months thereafter, at any 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 is sought with respect to any of the matters described in (x), (y) or (z) belowsought, the Stockholder shall: (i) when a meeting is held, appear at such meeting or otherwise cause all Subject subject Shares that were outstanding on the applicable record date to be counted as or present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted) the Subject Shares that were outstanding on the applicable record date against (x) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale or transfer of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, (y) any Acquisition Company Takeover Proposal and (z) any amendment of the Company Certificate 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, delay, frustrate, prevent or nullify the Merger or any provision of the Merger Agreement or any of the Transactions transactions contemplated thereby (the "Transactions") or change in any manner the voting rights of any class of the Company’s capital stockCompany Capital Stock. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing. The Stockholder agrees that, as a condition to the Transfertransfer, whether by operation of law or otherwise, of legal or beneficial ownership of the Subject Shares by the Stockholder to any person or entityentity which is an Affiliate of the Stockholder or member of the Stockholder's family (an "Affiliated Person"), the Stockholder shall obtain such person’s 's or entity’s 's agreement in writing to be bound by the terms of this Section 33(c).
(d) Stockholder further agrees that, until the termination of this Agreement, Stockholder will not, and will not permit any entity under Stockholder’s control to, (i) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Rule 14A under the Exchange Act) with respect to an Acquisition Proposal (as defined below), (ii) initiate a stockholders’ vote with respect to an Acquisition Proposal or (iii) become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any voting securities of the Company with respect to an Acquisition Proposal.
(e) Other than pursuant to this Agreement, the Stockholder shall not directly or indirectly (A) sell, transfer, pledge, encumber, 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 or Subject Options to any Person other than in accordance with the Merger or (B) grant any proxy, deposit any Subject Shares or Subject Options into any voting trust or enter into any other agreement or arrangement related to the voting of the Subject Shares or Subject OptionsShares, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or (C) commit or agree to take any of the foregoing actions.
(fe) The Stockholder shall use its commercially reasonable best efforts hereby consents to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with approves the other parties actions taken by the Company Board in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to approving the Merger, the Merger Agreement and the other Transactions. The Stockholder hereby waives, and agrees not to exercise or assert, any other Transaction without the prior consent of Parent, except for public statements made in press releases issued by the Company dissenter's rights under Sections 92A.300 to the extent permitted by the Merger Agreement or as may be required by applicable Law (including, without limitation, making filings required by Sections 13(d) and 16 92A.500 of the Exchange Act)Nevada Revised Statutes in connection with the Merger.
(gf) The Stockholder agrees to promptly notify Parent of the number of any Subject Shares acquired by the Stockholder after the date hereof.
(h) The Stockholder hereby covenants and agrees that the Stockholder (a) except for any existing liens identified on Schedule A, has not entered into and shall not enter into any agreement that would restrict, limit or interfere with the performance of the Stockholder’s obligations hereunder and (b) shall not take any action that would reasonably be expected to make any of his, her or its representations or warranties contained herein untrue or incorrect or have the effect of preventing or disabling him, her or it from performing his, her or its obligations under this Agreement.
(i) Stockholder shall not enter into any agreement or commitment with any Person the effect of which would be inconsistent with or violative of any of the provisions and agreements contained in this Agreement.
Appears in 1 contract
Samples: Stockholder Voting and Option Agreement (Warrantech Corp)
Covenants of Stockholder. Stockholder covenants with Issuer that, without the consent of Issuer, for a period commencing on the date hereof and agrees continuing through the fifth anniversary of the date hereof Stockholder and Affiliates, singly or as followspart of a group, directly or indirectly, through one or more intermediaries or otherwise, will not:
(a) At purchase, acquire or own, or offer, propose or agree to purchase, acquire or own, directly or indirectly, any meeting securities of Issuer which are entitled to vote generally in the election of directors (other than upon occurrence of a contingency) ("Voting Securities"), any option, warrant or other right to acquire, directly or indirectly, any Voting Securities or any securities which are convertible into or exchangeable or exercisable for Voting Securities, if, immediately after such purchase or acquisition, Stockholder and Affiliates would beneficially own, in the aggregate, Voting Securities representing an amount (the "Threshold Amount") which exceeds the greater of 20% of Issuer's outstanding Voting Securities or such percentage of the stockholders Issuer's outstanding Voting Securities which the sum of the Company called to vote on the Merger, the Merger Agreement or the other Transactions 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, the Merger Agreement or the other Transactions is sought, the Stockholder shall, (i) when a meeting is held, appear at such meeting or otherwise cause all Subject Shares that were outstanding on the record date for such meeting to be counted as present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted), including by executing a written consent, the Subject Shares that were outstanding on the record date for such meeting in favor of the adoption and approval of the Merger, the Merger Agreement and all of the Transactions.
(b) The Stockholder hereby irrevocably grants to, and appoints, Parent and Sub, or any of them, and any individual designated in writing by any of them, and each of them individually, as the Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Stockholder, to vote the Subject Shares of the Stockholder that are outstanding on the applicable date, or grant a consent or approval in respect of the Subject Shares of the Stockholder that are outstanding on the applicable date 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 and power of attorney set forth in this Section 3(b) is given issued in connection with the execution of the Merger Agreement, and that such irrevocable proxy and power of attorney is given to secure the performance of the duties of the Stockholder under Section 3 of this Agreement. The Stockholder hereby further affirms that the irrevocable proxy and power of attorney is coupled with an interest and may under no circumstances be revoked. The Stockholder hereby ratifies and confirms all that such irrevocable proxy and attorney-in-fact 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 Delaware General Corporation Law. The irrevocable proxy and power of attorney granted hereunder shall automatically terminate upon the termination of both Section 3(a) and Section 3(c).
(c) At any 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 with respect to any of the matters described in (x), (y) or (z) below, the Stockholder shall: (i) when a meeting is held, appear at such meeting or otherwise cause all Subject Shares that were outstanding on the applicable record date to be counted as present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted) the Subject Shares that were outstanding on the applicable record date against (x) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale or transfer of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by Shares issuable upon the Company, (y) any Acquisition Proposal and (z) any amendment conversion of the Company Certificate Notes issued in connection with the Purchase Agreement (taking into account any Voting Securities into which such Notes (or any Preferred Stock for which such Notes are exchanged) may from time to time be convertible as a result of application of the anti-dilution provisions applicable to the Notes or the Company By-laws or other proposal or transaction involving Preferred Stock) would constitute on a fully diluted basis on the Company or any Company Subsidiary, which amendment or other proposal or transaction would in any manner impede, delay, frustrate, prevent or nullify date of the Merger or any provision later of the closings of the transactions contemplated by the Merger Agreement and the Purchase Agreement; provided, however, that notwithstanding anything to the contrary contained herein, the foregoing restriction shall not be deemed to be violated or applicable if Stockholder is not otherwise in breach of this Agreement and (i) the percentage of the outstanding Voting Securities beneficially owned, in the aggregate, by Stockholder and Affiliates is increased as a result of a recapitalization of Issuer, a repurchase of securities by Issuer or any other action taken solely by Issuer, (ii) a benefit plan maintained for employees of Stockholder and Affiliates acquires up to 1% (in the aggregate) of the Transactions outstanding Common Stock solely for purposes of investment, or change (iii) Issuer breaches its obligation under Section 4(b) hereof; and provided, further, that so long as Stockholder is not otherwise in breach of this Agreement, (i) if a third party (which term for purposes of this Agreement shall include any manner the voting rights of any class group as defined in Section 13(d)(3) of the Company’s capital stock. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing. The Stockholder agrees thatSecurities Exchange Act of 1934, as amended) makes a condition tender or exchange offer which, if consummated, would result in such third party owning at least a majority of the Voting Securities and Issuer's Board of Directors does not oppose such tender or exchange offer at the time at which it is required by applicable securities laws to make a recommendation regarding such tender or exchange offer to Issuer's stockholders, then Stockholder may make and consummate a tender or exchange offer for a number of Voting Securities equal to or greater than the Transfernumber of Voting Securities which such third party seeks to purchase pursuant to such tender or exchange offer, whether by operation of law or otherwise, of legal or (ii) if a third party acquires beneficial ownership of at least 30% of the Subject Shares by the outstanding Voting Securities, and Stockholder to any person or entity, the Stockholder shall obtain such person’s or entity’s agreement in writing to be bound is prohibited by the terms of Section 3.
(d) this Agreement from acquiring more than 30% of the outstanding Voting Securities, then Stockholder further agrees that, until may purchase up to the termination same number of this Agreement, Stockholder will notVoting Securities as such third party or may make and consummate a tender or exchange offer for all outstanding Voting Securities, and will not permit any entity under Stockholder’s control to, (iiii) solicit proxies or become if Issuer's Board of Directors approves a “participant” in a “solicitation” (as such terms are defined in Rule 14A under the Exchange Act) definitive written agreement with respect to an Acquisition Proposal a business combination or other extraordinary transaction involving Issuer as a result of which more than 50% of the assets of Issuer would be transferred or a Change of Control (as defined below) would occur, then Stockholder may make and consummate a tender or exchange offer for all outstanding Voting Securities, and if Stockholder is permitted to make and consummate a tender or exchange offer pursuant hereto, none of the restrictions contained in this Section 3 (with the exception of Section 3(f) and the application of Section 3(g) to Section 3(f), ) shall apply to Stockholder's activities with regard to any stockholder vote or proposal in connection therewith or in connection with any alternative transaction or action proposed in response thereto; "Change of Control" shall mean any transaction as a result of which (iii) initiate a stockholders’ vote with respect to an Acquisition Proposal or (iii) become a member the owners of a “group” (as such term is used in Section 13(d) majority of the Exchange Act) with respect Voting Securities of Issuer immediately prior to any voting securities consummation of the Company with respect transaction will not continue to an Acquisition Proposal.
(e) Other than pursuant to this Agreement, own upon completion of the Stockholder shall not directly or indirectly transaction (A) sell, transfer, pledge, encumber, assign or otherwise dispose a majority 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 or Subject Options to any Person other than in accordance with the Merger Voting Securities of Issuer or (B) grant any proxy, deposit any Subject Shares or Subject Options into any voting trust or enter into a majority of the Voting Securities of any other agreement person into or arrangement related to for the voting securities of which the Voting Securities of Issuer will be converted or exchanged as a result of the Subject Shares or Subject Options, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares transaction or (Cii) commit or agree as a result of which any third party is entitled to take any elect a majority of the foregoing actions.
(f) The Stockholder shall use its commercially reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. The Stockholder shall not issue any press release or make any other public statement with respect to the Merger, the Merger Agreement or any other Transaction without the prior consent of Parent, except for public statements made in press releases issued by the Company to the extent permitted by the Merger Agreement or as may be required by applicable Law (including, without limitation, making filings required by Sections 13(d) and 16 members of the Exchange Act).
(g) The Stockholder agrees to promptly notify Parent Board of the number Directors of any Subject Shares acquired by the Stockholder after the date hereof.
(h) The Stockholder hereby covenants and agrees that the Stockholder (a) except for any existing liens identified on Schedule A, has not entered into and shall not enter into any agreement that would restrict, limit or interfere with the performance of the Stockholder’s obligations hereunder and (b) shall not take any action that would reasonably be expected to make any of his, her or its representations or warranties contained herein untrue or incorrect or have the effect of preventing or disabling him, her or it from performing his, her or its obligations under this Agreement.
(i) Stockholder shall not enter into any agreement or commitment with any Person the effect of which would be inconsistent with or violative of any of the provisions and agreements contained in this Agreement.Issuer;
Appears in 1 contract
