Covenants of the Shareholders. Irrevocable Proxy. Until the earlier of (i) the Effective Time (as defined in the Merger Agreement) or (ii) the valid termination of this Agreement pursuant to Section 7, the Shareholders agree as follows: (a) At any meeting of shareholders of the Company called to vote upon the Merger and the Merger Agreement or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval with respect to the Merger and the Merger Agreement is sought, the Shareholders shall vote (or cause to be voted) all shares of Company Common Stock they own or have voting control over in favor of the Merger, the approval of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Agreement. (b) At any meeting of shareholders of the Company or at any adjournment thereof or in any other circumstances upon which the Shareholders' vote, consent or other approval is sought, the Shareholders shall vote (or cause to be voted) all shares of Company Common Stock owned by them 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 or any other Takeover Proposal (as defined in the Merger Agreement), (ii) any amendment of the Company's Articles of Incorporation or Amended and Restated By-Laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement, or (iii) any action or agreement which would result in a breach of any representation, warranty or covenant of the Company set forth in the Merger Agreement. (c) The Shareholders agree not to (i) Transfer or Otherwise Dispose (as hereinafter defined) of, or enter into any Arrangement with respect thereto, the Owned Shares to any person other than Sub or Sub's designee (except for the transfer of any of the Option Shares pursuant to the Option Agreements), or (ii) except for this Agreement, enter into any voting arrangement, whether by proxy, voting agreement, voting trust or otherwise. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to restrict or prohibit the ability of each Shareholder to transfer his shares to members of his immediate family or trusts or other entities in connection with estate planning objectives, provided that such transferee agrees in writing to be bound by the terms of this Agreement as though such transferee were a Shareholder, and that notice and a copy of such agreement are provided to Parent prior to such transfer. For purposes of this Agreement, "Transfer or Otherwise Dispose" means any sale, exchange, redemption, assignment, gift, grant of a security interest, pledge or other encumbrance, or the establishment of any voting trust or other agreement or arrangement with respect to the transfer of voting rights or any other beneficial interests in the Company Common Stock, the creation of any other claim thereto or any other transfer or disposition whatsoever (including involuntary sales, exchanges, transfers or other dispositions as a result of a Takeover Proposal or otherwise, and whether or not for cash or other consideration) affecting the right, title, interest or possession in, to or of the Company Common Stock.
Appears in 2 contracts
Samples: Shareholders Agreement (Adler Jeffrey A), Shareholders Agreement (Adler Jeffrey A)
Covenants of the Shareholders. Irrevocable Proxy. Until the earlier of (i) the Effective Time (Each Shareholder covenants and agrees, severally and not jointly, as defined in the Merger Agreement) or (ii) the valid termination of this Agreement pursuant to Section 7such Shareholder only, the Shareholders agree as follows:
(a) At Prior to the Expiration Date, at any meeting of shareholders of the Company called to vote upon the Merger Shareholder Meeting, and the Merger Agreement or at any adjournment thereof or postponement thereof, called to seek the Required Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger and Agreement, the Company Documents, the Merger Agreement or any other transaction contemplated thereby is sought, the Shareholders shall such Shareholder shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) all shares of Company Common Stock they own ), in person or have voting control over by proxy, the Subject Shares in favor of (i) granting the Merger, the approval of the Merger Agreement Required Approval and the approval of the terms thereof and each of the other transactions contemplated by (ii) any proposal to adjourn any Company Shareholder Meeting so long as such adjournment is permitted under the Merger Agreement.
(b) At any Prior to the Expiration Date, at every meeting of shareholders of the Company or at any adjournment thereof or in any other circumstances upon which the Shareholders' such Shareholder’s vote, consent or other approval (including by written consent) is sought, the Shareholders such Shareholder shall vote (or cause to be voted) all shares of Company Common Stock owned by them the Subject Shares against (i) any merger Adverse Acquisition Agreement, (ii) any Acquisition Proposal or Superior Proposal, (iii) any action, proposal, transaction or agreement which would reasonably be expected to result in a breach of any covenant, representation 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 warranty or any other Takeover Proposal (as defined in obligation or agreement of the Company under the Merger Agreement), and (iiiv) any amendment of the Company's ’s Articles of Incorporation or Amended and Restated By-Laws the Bylaws or other action, proposal or transaction involving the Company or any of its subsidiariesSubsidiaries, which amendment or other action, proposal or transaction would in any manner reasonably be expected to impede, interfere with, delay, frustrate, prevent or nullify the Merger, the Merger Agreement or any provision of the other transactions contemplated by the Merger Agreement, the Merger or (iii) any other transaction contemplated thereby, inhibit the timely consummation of the transactions contemplated thereby or change in any manner the voting rights of any class of capital stock of the Company. Prior to the Expiration Date, such Shareholder shall not commit or agree to take any action or agreement which would result in a breach of any representation, warranty or covenant of inconsistent with the Company set forth in the Merger Agreementforegoing.
(c) Such Shareholder hereby irrevocably grants to, and appoints, Parent, and any individual designated in writing by Parent, and each of them individually, as such Shareholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Shareholder, to vote the Subject Shares, or grant a consent or approval in respect of the Subject Shares, in a manner required by this Section 4. Such Shareholder understands and acknowledges that Parent is entering into the Merger Agreement and the applicable Ancillary Documents in reliance upon such Shareholders’ execution and delivery of this Agreement. Such Shareholder hereby affirms that the irrevocable proxy set forth in this Section 4(c) is given in consideration of the execution of the Merger Agreement by Parent and Merger Sub, and that such irrevocable proxy is given to secure the performance of the duties of such Shareholder under this Agreement. Such Shareholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked except upon the termination of this Agreement in accordance with its terms. Such Shareholder hereby ratifies and confirms all actions that such irrevocable proxy may lawfully take or cause to be taken by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of all applicable Law, including NRS 78.355. The Shareholders agree irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. With respect to the proxy granted hereunder by such Shareholder, Parent agrees not to exercise this proxy if such Shareholder complies with his obligations in this Agreement. Such Shareholder shall take all further action or execute such other instruments as may be reasonably necessary to effectuate the intent of this proxy.
(d) Prior to the Expiration Date, such Shareholder shall not (i) Transfer directly or Otherwise Dispose indirectly offer, sell, transfer, assign, exchange, pledge, encumber or otherwise dispose of (as hereinafter definedincluding by gift) of(collectively, “Transfer”), or enter into any Arrangement contract, option, agreement, understanding or other arrangement (including any profit sharing arrangement) with respect theretoto a Transfer of, the Owned Shares any of such Shareholder’s Company Shares, or any interest therein, to any person other than Sub or Sub's designee (except for the transfer of any of the Option Shares pursuant to the Option Agreements)Person, or (ii) except for this Agreement, enter into any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise, with respect to any of such Shareholder’s Subject Shares or (iii) commit or agree to take any of the foregoing actions.
(e) Such Shareholder (in his capacity as such) shall not engage, nor shall such Shareholder (in his capacity as such) authorize or permit any investment banker, attorney, accountant or other representative or agent (collectively, the “Shareholder Representatives”) of such Shareholder (in his capacity as such) to engage, directly or indirectly, in any activity that would be prohibited pursuant to Section 4.11 of the Merger Agreement. Notwithstanding anything to the contrary in this Agreement, if the Company, in compliance with the provisions of Section 4.11 of the Merger Agreement, has provided information to or entered into discussions or negotiations with, any Person in response to an Acquisition Proposal made by such Person, then such Shareholder and his Shareholder Representatives may provide information to and engage in discussions or negotiations with such Person only to the extent the Company and its Subsidiaries and their respective officers and directors and the Company Representatives are permitted to do so pursuant to the terms of Section 4.11 of the Merger Agreement. For the avoidance of doubt, nothing in this Section 4(e) shall limit or affect any actions or omissions taken by any Shareholder in such Shareholder’s capacity as a director or officer of the Company, including in exercising rights under the Merger Agreement (including under Section 4.11 thereof), and no such actions or omissions shall be deemed a breach of this Section 4(e).
(f) Such Shareholder (in his capacity as such) shall not issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the other Ancillary Documents, the Merger or any other transaction contemplated thereby without the prior consent of Parent.
(g) Notwithstanding anything in this Agreement to the contrary, no Shareholder shall be limited or restricted in any way from acting in such Shareholder’s fiduciary capacity as a director or officer of the Company, in order for such Shareholder to comply with such Shareholder’s fiduciary duties as a director or officer of the Company. In addition, notwithstanding anything in this Agreement to the contrary, no Shareholder shall be limited or restricted in any way from voting in such Shareholder’s sole discretion on any matter other than the matters referred to in Sections 4(a) and (b) hereof. The parties acknowledge that this Agreement shall apply to each Shareholder solely in such Shareholder’s capacity as a shareholder of the Company and that no Shareholder makes any agreement or understanding herein in his capacity as a director or officer of the Company.
(h) Such Shareholder hereby acknowledges and agrees that such Shareholder is not and shall not be entitled to any dissenter’s rights under NRS Chapter 92A or any other rights of appraisal in connection with the Merger Agreement and the transactions contemplated thereby, including the Merger, and notwithstanding the foregoing, nothing contained in this Agreement shall be deemed hereby waives, and agrees not to restrict assert or prohibit perfect, any and all rights of dissent or appraisal such Shareholder may have by virtue of ownership of any of the ability Company Shares.
(i) Such Shareholder hereby acknowledges that such Shareholder is familiar with and has reviewed the Merger Agreement, understands that the only consideration the such Shareholder is entitled to receive as a holder of each Shareholder to transfer his shares to members of his immediate family or trusts or other entities Company Shares in connection with estate planning objectives, provided that such transferee agrees in writing the Merger is the consideration to be bound by paid pursuant to the terms of this Merger Agreement as though and such transferee were a Shareholder, and that notice and a copy of such agreement are provided to Parent prior Shareholder hereby consents to such transfer. For purposes of this Agreementconsideration, "Transfer or Otherwise Dispose" means any sale, exchange, redemption, assignment, gift, grant of a security interest, pledge or other encumbrance, or including the establishment of any voting trust or other agreement or arrangement with respect to the transfer of voting rights or any other beneficial interests in the Company Common Stock, the creation of any other claim thereto or any other transfer or disposition whatsoever (including involuntary sales, exchanges, transfers or other dispositions as a result of a Takeover Proposal or otherwise, amount and whether or not for cash or other consideration) affecting the right, title, interest or possession in, to or of the Company Common Stockform thereof.
Appears in 1 contract
Samples: Voting and Support Agreement (Liberator Medical Holdings, Inc.)
Covenants of the Shareholders. Irrevocable Proxy. Until (a) During the period beginning on the date of this Agreement and ending on the earlier of (ix) the Effective Time and (as defined in y) the termination of the Merger Agreement) or Agreement in accordance with its terms (ii) the valid termination of this “Agreement pursuant to Section 7Period”), the Shareholders agree as followseach Shareholder hereby agrees to:
(ai) At any be present, in person or represented by proxy, at each meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the shareholders of the Company called to vote upon Company, however called, so that all of such Shareholder’s Schedule A Shares and all of the Merger and the Merger Agreement or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval with respect to the Merger and the Merger Agreement is sought, the Shareholders shall vote (or cause to be voted) all shares of Company Common Stock they own or have voting control over in favor and other shares of capital stock of the MergerCompany that such Shareholder becomes entitled to vote after the date of this Agreement (together with the Schedule A Shares, the “Shares”) may be counted for purposes of determining the presence of a quorum at such meeting;
(ii) at each such meeting, and at any adjournment or postponement thereof, vote the Shares to: (A) approve and adopt the Merger Agreement and all agreements related to the Merger and any action required in furtherance thereof; and (B) without limitation of the preceding clause (A), approve any proposal to adjourn or postpone the Company Shareholders Meeting to a later date if there are not sufficient votes for approval and adoption of the Merger Agreement on the date on which the Company Shareholders Meeting is held; and
(iii) at each such meeting, and at any adjournment or postponement thereof, vote against: (A) any action or agreement that would reasonably be expected to frustrate the approval purposes of, impede, hinder, interfere with, or prevent or delay the consummation of the terms thereof and each of the other transactions contemplated by the Merger AgreementAgreement and (B) any Acquisition Proposal (other than the Merger) and any action required in furtherance thereof.
(b) At any meeting of shareholders of During the Company Agreement Period, each Shareholder will not, directly or at any adjournment thereof or in any other circumstances upon which the Shareholders' vote, consent or other approval is sought, the Shareholders shall vote (or cause to be voted) all shares of Company Common Stock owned by them against indirectly: (i) solicit or initiate the making of, or take any merger agreement other action to knowingly facilitate any inquiries or merger the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal; (ii) participate in any way in discussions or negotiations with, or furnish or disclose any information to, any Person (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 Parent or any other Takeover of its Representatives) in connection with any Acquisition Proposal; or (iii) publicly announce that he or she is considering approving or recommending any Acquisition Proposal. Each Shareholder agrees to notify Parent promptly (but in no event later than one Business Day) after receipt by such Shareholder of any Acquisition Proposal (as defined in the Merger Agreement), (ii) or of any amendment of the Company's Articles of Incorporation or Amended and Restated By-Laws or other proposal or transaction involving request for information relating to the Company or any of its subsidiariesSubsidiaries or for access to the business, which amendment properties, assets, books or other proposal or transaction would in any manner impede, frustrate, prevent or nullify records of the Merger, the Merger Agreement Company or any of its Subsidiaries by any Person that such Shareholder reasonably believes is seeking to make, or has made, an Acquisition Proposal. Notwithstanding anything in this Section 1(b) to the other transactions contemplated by contrary, in the event that the Board of Directors of the Company is permitted to engage in negotiations or discussions with any Person who made an unsolicited bona fide written Acquisition Proposal in accordance with Section 5.5 of the Merger Agreement, each Shareholder shall be permitted, at the request of the Board of Directors of the Company, to respond to inquiries from, and discuss such Acquisition Proposal with, the Board of Directors of the Company. This Section 1(b) shall not be construed to limit acts taken by any Shareholder who is an individual in his or (iii) any action her capacity as an officer or agreement which would result in a breach of any representation, warranty or covenant director of the Company set forth in that do not violate any of the provisions of Section 5.5 of the Merger Agreement.
(c) The Shareholders agree not to (i) Transfer or Otherwise Dispose (as hereinafter defined) of, or enter into any Arrangement with respect thereto, the Owned Shares to any person other than Sub or Sub's designee (except for the transfer of any of the Option Shares pursuant to the Option Agreements), or (ii) except for this Agreement, enter into any voting arrangement, whether by proxy, voting agreement, voting trust or otherwise. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to restrict or prohibit the ability of each Shareholder to transfer his shares to members of his immediate family or trusts or other entities in connection with estate planning objectives, provided that such transferee agrees in writing to be bound by the terms of this Agreement as though such transferee were a Shareholder, and that notice and a copy of such agreement are provided to Parent prior to such transfer. For purposes of this Agreement, "Transfer or Otherwise Dispose" means any sale, exchange, redemption, assignment, gift, grant of a security interest, pledge or other encumbrance, or the establishment of any voting trust or other agreement or arrangement with respect to the transfer of voting rights or any other beneficial interests in the Company Common Stock, the creation of any other claim thereto or any other transfer or disposition whatsoever (including involuntary sales, exchanges, transfers or other dispositions as a result of a Takeover Proposal or otherwise, and whether or not for cash or other consideration) affecting the right, title, interest or possession in, to or of the Company Common Stock.
Appears in 1 contract
Samples: Voting Agreement (Cenveo, Inc)
Covenants of the Shareholders. Irrevocable Proxy. Until the earlier of (i) the Effective Time (as defined in the Merger Agreement) or (ii) the valid termination of this Agreement pursuant to Section 7, the Shareholders agree Each Shareholder covenants and agrees as follows:
(a) At any the meeting of shareholders referred to in Section 3.1(b) of the SPA or any other meeting of the shareholders of Company called to vote upon seek the Merger and the Merger Agreement Shareholder Approvals, or at any adjournment thereof thereof, or in any other circumstances upon which a vote, consent or other approval (including by written consent) of the shareholders of the Company with respect to the Merger and transactions contemplated by the Merger Agreement SPA is sought, the Shareholders Shareholder shall vote (or cause to be voted) all shares the Subject Shares of Company Common Stock they own or have voting control over the Shareholder and its Affiliates and immediate family members in favor of granting the MergerShareholder Approvals, it being understood that pursuant to the applicable rules of the NASDAQ Stock Market, the approval of the Merger Agreement and the approval of the terms thereof and each of the other transactions Shareholder may not vote any such Subject Shares which were acquired in connection with any transaction contemplated by the Merger AgreementSPA in respect of the matters requiring the Shareholder Approvals by the rules of the NASDAQ Stock Market.
(b) At any meeting of shareholders of the Company or at any adjournment thereof or in any other circumstances upon which the Shareholders' Shareholder's vote, consent or other approval is sought, the Shareholders Shareholder shall vote (or cause to be voted) all shares the Subject Shares of Company Common Stock owned by them the Shareholder and its Affiliates and immediate family members 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 or any other Takeover Proposal (as defined in the Merger Agreement), (ii) any amendment of the Company's Articles Certificate of Incorporation or Amended and Restated By-Laws the bylaws of the Company or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any provision of the other SPA or the transactions contemplated by thereby or change in any manner the Merger Agreement, voting rights of any class of the Company's capital stock. The Shareholder shall not commit or (iii) agree to take any action or agreement which would result in a breach of any representation, warranty or covenant of inconsistent with the Company set forth in the Merger Agreementforegoing.
(c) The Shareholders agree Shareholder shall not to (ia) Transfer sell, transfer, pledge, assign, encumber or Otherwise Dispose otherwise dispose of (as hereinafter definedincluding by gift) of(collectively, "Transfer"), or enter into any Arrangement contract, option, derivative, hedging or other agreement or arrangement (including any profit- or loss-sharing arrangement) with respect theretoto the Transfer of, the Owned Shares to any person other than Sub or Sub's designee (except for the transfer of Subject Shares, nor shall it permit any of the Option Shares pursuant foregoing; provided, however, that the Shareholder may make or permit a Transfer (i) to other Shareholders and family members, including but not limited to the Option Agreementsspouse, children, grandchildren, parents, siblings, nieces or nephews of such Shareholder (collectively, "Family Members"), or ; (ii) except to the estate of such Shareholder and from the estate of such Shareholder; (iii) to any trust solely for the benefit of such Shareholder and/or any Family Member(s); (iv) any partnership, corporation or limited liability company which is wholly-owned and controlled by such Shareholder and/or any such Family Member(s); and (v) in connection with any bona fide philanthropic gift or donation, in each case, only if any such permitted transferee executes a voting agreement in the same form as this AgreementAgreement and otherwise in form and substance satisfactory to the Investor and delivers such voting agreement to the Investor (the recipient of Subject Shares resulting from any such Transfer, a "Permitted Assign"); (b) enter into or permit any voting arrangement, whether by proxy, voting agreement, voting trust agreement or otherwise. Notwithstanding , with respect to any Subject Shares (other than this Agreement); provided, however, that the foregoing, nothing contained in this Agreement Shareholder shall be deemed permitted to restrict or prohibit enter into any such voting arrangement with the ability of each Shareholder to transfer his shares to members of his immediate family or trusts or other entities in connection with estate planning objectivesShareholders and any Permitted Assigns, provided that but only if such transferee agrees in writing to be bound by the terms of this Agreement as though such transferee were a Shareholdervoting arrangement is consistent with, and that notice and a copy of such agreement are provided to Parent prior to such transfer. For purposes would not in any manner contradict, nullify or otherwise frustrate, the purpose or effects of this Agreement, "Transfer ; or Otherwise Dispose" means (c) commit or agree to take any sale, exchange, redemption, assignment, gift, grant of a security interest, pledge or other encumbrance, or the establishment of any voting trust or other agreement or arrangement with respect to the transfer of voting rights or any other beneficial interests in the Company Common Stock, the creation of any other claim thereto or any other transfer or disposition whatsoever (including involuntary sales, exchanges, transfers or other dispositions as a result of a Takeover Proposal or otherwise, and whether or not for cash or other consideration) affecting the right, title, interest or possession in, to or of the Company Common Stockforegoing actions.
Appears in 1 contract
Samples: Voting Agreement (Brown Bernard A)
Covenants of the Shareholders. Irrevocable Proxy. Until the earlier of (i) the Effective Time (Each Shareholder covenants and agrees, severally and not jointly, as defined in the Merger Agreement) or (ii) the valid termination of this Agreement pursuant to Section 7such Shareholder only, the Shareholders agree as follows:
(a) At Prior to the Expiration Date, at any meeting of shareholders of the Company called to vote upon the Merger Shareholder Meeting, and the Merger Agreement or at any adjournment thereof or postponement thereof, called to seek the Required Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger and Agreement, the Company Documents, the Merger Agreement or any other transaction contemplated thereby is sought, the Shareholders shall such Shareholder shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) all shares of Company Common Stock they own ), in person or have voting control over by proxy, the Subject Shares in favor of (i) granting the Merger, the approval of the Merger Agreement Required Approval and the approval of the terms thereof and each of the other transactions contemplated by (ii) any proposal to adjourn any Company Shareholder Meeting so long as such adjournment is permitted under the Merger Agreement.
(b) At any Prior to the Expiration Date, at every meeting of shareholders of the Company or at any adjournment thereof or in any other circumstances upon which the Shareholders' such Shareholder’s vote, consent or other approval (including by written consent) is sought, the Shareholders such Shareholder shall vote (or cause to be voted) all shares of Company Common Stock owned by them the Subject Shares against (i) any merger Adverse Acquisition Agreement, (ii) any Acquisition Proposal or Superior Proposal, (iii) any action, proposal, transaction or agreement which would reasonably be expected to result in a breach of any covenant, representation 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 warranty or any other Takeover Proposal (as defined in obligation or agreement of the Company under the Merger Agreement), and (iiiv) any amendment of the Company's ’s Articles of Incorporation or Amended and Restated By-Laws the Bylaws or other action, proposal or transaction involving the Company or any of its subsidiariesSubsidiaries, which amendment or other action, proposal or transaction would in any manner reasonably be expected to impede, interfere with, delay, frustrate, prevent or nullify the Merger, the Merger Agreement or any provision of the other transactions contemplated by the Merger Agreement, the Merger or (iii) any other transaction contemplated thereby, inhibit the timely consummation of the transactions contemplated thereby or change in any manner the voting rights of any class of capital stock of the Company. Prior to the Expiration Date, such Shareholder shall not commit or agree to take any action or agreement which would result in a breach of any representation, warranty or covenant of inconsistent with the Company set forth in the Merger Agreementforegoing.
(c) Such Shareholder hereby irrevocably grants to, and appoints, Parent, and any individual designated in writing by Parent, and each of them individually, as such Shareholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Shareholder, to vote the Subject Shares, or grant a consent or approval in respect of the Subject Shares, in a manner required by this Section 4. Such Shareholder understands and acknowledges that Parent is entering into the Merger Agreement and the applicable Ancillary Documents in reliance upon such Shareholders’ execution and delivery of this Agreement. Such Shareholder hereby affirms that the irrevocable proxy set forth in this Section 4(c) is given in consideration of the execution of the Merger Agreement by Parent and Merger Sub, and that such irrevocable proxy is given to secure the performance of the duties of such Shareholder under this Agreement. Such Shareholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked except upon the termination of this Agreement in accordance with its terms. Such Shareholder hereby ratifies and confirms all actions that such irrevocable proxy may lawfully take or cause to be taken by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of all applicable Law, including NRS 78.355. The Shareholders agree irrevocable proxy granted hereunder shall automatically terminate upon the termination of this Agreement. With respect to the proxy granted hereunder by such Shareholder, Parent agrees not to exercise this proxy if such Shareholder complies with his obligations in this Agreement. Such Shareholder shall take all further action or execute such other instruments as may be reasonably necessary to effectuate the intent of this proxy.
(d) Prior to the Expiration Date, such Shareholder shall not (i) Transfer directly or Otherwise Dispose indirectly offer, sell, transfer, assign, exchange, pledge, encumber or otherwise dispose of (as hereinafter definedincluding by gift) of(collectively, “Transfer”), or enter into any Arrangement with respect theretocontract, the Owned Shares to any person other than Sub or Sub's designee (except for the transfer of any of the Option Shares pursuant to the Option Agreements)option, or (ii) except for this Agreement, enter into any voting arrangement, whether by proxy, voting agreement, voting trust or otherwise. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to restrict or prohibit the ability of each Shareholder to transfer his shares to members of his immediate family or trusts understanding or other entities in connection with estate planning objectives, provided that such transferee agrees in writing to be bound by the terms of this Agreement as though such transferee were a Shareholder, and that notice and a copy of such agreement are provided to Parent prior to such transfer. For purposes of this Agreement, "Transfer or Otherwise Dispose" means arrangement (including any sale, exchange, redemption, assignment, gift, grant of a security interest, pledge or other encumbrance, or the establishment of any voting trust or other agreement or arrangement profit sharing arrangement) with respect to the transfer a Transfer of, any of voting rights such Shareholder’s Company Shares, or any other beneficial interests in the Company Common Stock, the creation of any other claim thereto or any other transfer or disposition whatsoever (including involuntary sales, exchanges, transfers or other dispositions as a result of a Takeover Proposal or otherwise, and whether or not for cash or other consideration) affecting the right, title, interest or possession intherein, to or of the Company Common Stock.any Person,
Appears in 1 contract
Samples: Merger Agreement (Liberator Medical Holdings, Inc.)
