Covenants of the Stockholder. The Stockholder agrees as follows: (a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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 stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement. (c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser or Purchaser's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal. (d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal. (e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 8 contracts
Samples: Merger Agreement (Pamida Holdings Corp/De/), Merger Agreement (Shopko Stores Inc), Stockholder Agreement (Shopko Stores Inc)
Covenants of the Stockholder. The Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate articles of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser Sub or PurchaserSub's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 8 contracts
Samples: Stockholder Agreement (Smith & Nephew Inc), Stockholder Agreement (Smith & Nephew Inc), Stockholder Agreement (Smith & Nephew Inc)
Covenants of the Stockholder. The During the term of this Agreement, the Stockholder agrees as follows:
(a) At any meeting of stockholders of the Company called to vote upon the Merger and the Merger Agreement or at any adjournment or postponement thereof or in any other circumstances upon which a vote, consent or other approval with respect to the Merger and the Merger Agreement is soughtsought (including an approval by written consent), the Stockholder shall be present in person or represented by proxy, or otherwise cause, the Subject Shares (to the extent such Subject Shares have voting rights) to be counted for quorum purposes under applicable Law and shall vote (or cause to be voted) or deliver a written consent (or cause a written consent to be delivered) with respect to the Subject Shares (to the extent such Subject Shares have voting rights) (A) in favor of the Merger, the approval adoption of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger AgreementAgreement and (B) without limitation of the preceding clause (A), approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for approval of the Merger and adoption of the Merger Agreement on the date on which such meeting is held.
(b) At any meeting of stockholders of the Company or at any adjournment or postponement thereof or in any other circumstances upon which the Stockholder's ’s vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares (to the extent such Subject Shares have voting rights) against (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assetsassets that constitute or account for over 15% of the consolidated net revenues, net income or assets of the Company and its subsidiaries, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or Acquisition Proposal, (ii) any amendment of the Company's certificate ’s articles of incorporation or by-laws or other proposal action, proposal, transaction or transaction agreement involving the Company or any of its subsidiaries, which amendment or other proposal action, proposal, transaction or transaction agreement would in any manner impede, hinder, interfere with, frustrate, prevent prevent, delay, adversely affect or nullify the Offer, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or (iii) any action, proposal, transaction or agreement that would reasonably be expected to result in a breach of any covenant, representation or warranty or other obligation or agreement of the Stockholder under this Agreement or of the Company under the Merger Agreement.
(c) The Stockholder agrees not to to, directly or indirectly (i) sell, transfer, pledge, assign or otherwise dispose ofTransfer, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, the Subject Shares to any person Person other than Purchaser Merger Sub or Purchaser's designee Merger Sub’s designee, in each case pursuant to the Offer, or (ii) enter into any voting arrangement, whether by proxy, voting agreement agreement, power of attorney or otherwise, with respect to the Subject Shares; provided, however, that the Stockholder may Transfer Subject Shares to any Person that is an Affiliate of the Stockholder so long as such Person agrees, in connectionform and substance reasonably satisfactory to Parent, with respect to the Subject Shares that are Transferred to such Person, to be bound by the terms and conditions of this Agreement (each a “Permitted Transfer”). For purposes of this Agreement, “Transfer” means, directly or indirectly, with any Takeover Proposal.
to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of (d) The Stockholder shall not, nor shall the Stockholder permit any investment banker, attorney by merger (including by conversion into securities or other adviser consideration), by tendering into any tender or representative exchange offer, by testamentary disposition, by operation of the Stockholder toLaw or otherwise), (i) directly either voluntarily or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regardinginvoluntarily, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect contract, option or other arrangement or understanding to or approve or recommend do any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Sharesforegoing.
Appears in 8 contracts
Samples: Tender and Support Agreement (Dakota Growers Pasta Co Inc), Tender and Support Agreement (Dakota Growers Pasta Co Inc), Tender and Support Agreement (Viterra Inc /Fi)
Covenants of the Stockholder. The From and after the date hereof through and including the termination of this Agreement, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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 Acquisition Proposal or (ii) any amendment of the Company's certificate articles of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder hereby agrees that, except as contemplated by this Agreement and the Merger Agreement, the Stockholder shall not to (i) sell, transfer, pledge, assign or otherwise dispose of, of (including by gift) or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of (collectively, "Transfer"), or consent to or permit any Transfer of, any or all of the Subject Shares to or any person other than Purchaser or Purchaser's designee interest therein or (ii) enter into grant any voting arrangement, whether by proxy, voting agreement power-of-attorney or otherwise, other authorization in connection, directly or indirectly, with respect to the Subject Shares. Nothing in this Agreement shall prevent the conversion of the Subject Shares into other property in accordance with a statutory merger or share exchange or restrict in any Takeover Proposalmanner the Stockholder's right to transfer or alienate such property.
(d) The Stockholder acknowledges that it is bound by the provisions of Section 7.1 of the Merger Agreement and shall not, nor shall the Stockholder permit any investment banker, attorney or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, of any Takeover Acquisition Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Acquisition Proposal, or (iii) enter into any agreement with respect unless and solely to or approve or recommend any Takeover Proposalthe extent expressly permitted under Section 7.1 of the Merger Agreement.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall hereby agrees to validly tender pursuant to and in accordance with the terms of the Offer, and not withdrawas soon as practicable after commencement but in no event later than the then scheduled expiration date of the Offer, all of the Subject Shares by physical delivery of the certificates therefor (if such Subject Shares are certificated in the name of Stockholder), and not to withdraw such Subject Shares, except following a termination of the Offer pursuant to its terms. If such Subject Shares are currently held in the name of a broker or other nominee, Stockholder shall instruct the broker or nominee to deliver the securities by a book-entry transfer or other customary electronic means for delivery of securities in connection with a tender offer. Stockholder hereby authorizes Parent and Merger Sub to publish and disclose in the Offer Documents and, if approval of the Company's stockholders is required under applicable law, the Proxy Statement (including all documents and schedules filed with the SEC) Stockholder's identity and ownership of the Subject Shares and the nature of Stockholder's commitments, arrangements and understandings under this Agreement.
Appears in 7 contracts
Samples: Stockholder Agreement (Headhunter Net Inc), Stockholder Agreement (Headhunter Net Inc), Stockholder Agreement (Headhunter Net Inc)
Covenants of the Stockholder. The Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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 stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate Articles of incorporation Incorporation or byBy-laws or other proposal or transaction involving the Company or any of its subsidiariesaffiliates, 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.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares or Subject Warrants (or any option or warrant to purchase Shares or Warrants, except for any sale or transfer to the Company) to any person other than Purchaser Sub or PurchaserSub's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject SharesShares and Subject Warrants.
Appears in 6 contracts
Samples: Merger Agreement (Harris Corp /De/), Stockholder Agreement (Harris Corp /De/), Stockholder Agreement (Harris Corp /De/)
Covenants of the Stockholder. The Until the termination of this Agreement in accordance with Section 5, the Stockholder covenants and agrees with Nipro and the Acquisition Corporation as follows:
(a) At any meeting of stockholders As soon as practicable but in no event later than five business days after the commencement 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 soughtOffer, the Stockholder shall vote (will duly tender or cause to be voted) tendered to the Acquisition Corporation all of the Subject Shares. The Stockholder further agrees not to withdraw or caused to be withdrawn any of the Subject Shares in favor prior to the expiration of the MergerOffer, as the approval of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by Offer may be extended from time to time in accordance with the Merger Agreement.
(b) At any meeting of stockholders of the Company or at Stockholders Meeting (including any adjournment thereof or postponement thereof) and in any other circumstances upon circumstance in which the Stockholder's Stockholder is entitled to vote, consent or give any other approval is soughtwith respect to the Merger Agreement, the Stockholder shall will vote (or cause to be voted) all of the Subject Shares in favor of the adoption of the Merger Agreement.
(c) At the Stockholders Meeting (or at any adjournment or postponement thereof) and in any other circumstance in which the Stockholder is entitled to vote, consent or give any other approval, the Stockholder will vote (or cause to be voted) all of the Subject Shares against each of the following :
(i) any merger action or omission that would result in a breach of any representation, warranty, covenant, agreement or merger (other than obligation of HDI under the Merger Agreement and or of the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or Stockholder under this Agreement;
(ii) any Acquisition Proposal, whether or not constituting a Superior Acquisition Proposal;
(iii) any amendment of the Company's to HDI’s certificate of incorporation or by-laws bylaws, including any amendment that would authorize any additional shares or other proposal classes of shares of capital stock or transaction involving change in any manner the Company rights and privileges, including voting rights, of any class of HDI’s capital stock;
(iv) any material change in the present capitalization or dividend policy of HDI;
(v) any material change in the board of directors or senior management of HDI or any of its subsidiaries;
(vi) any material change in HDI’s corporate structure or business activities; or
(vii) any other plan, which amendment transaction, proposal, agreement or other proposal or transaction would in any manner arrangement that could reasonably be expected to impede, frustrateinterfere with, prevent discourage, prevent, delay, nullify or nullify the Merger, postpone the Merger Agreement or any of the other transactions contemplated by the Merger Agreement. The Stockholder, solely in his, her or its capacity as a stockholder of HDI, further agrees not to commit or agree to take any action inconsistent with the foregoing agreements.
(cd) The Stockholder agrees to be present (in person or by proxy) or to cause the holder or holders of record of all of the Subject Shares on the applicable record date (each, a “Record Holder”) to be present (in person or by proxy) at the Stockholders Meeting and all other meetings of the stockholders of HDI called to vote on any matter contemplated by this Agreement so that all of the Subject Shares will be counted for the purpose of determining the presence of a quorum at such meetings, and to vote or cause each Record Holder to vote all of the Subject Shares in the manner required by this Agreement.
(e) AS SECURITY FOR THE PERFORMANCE OF THE OBLIGATIONS OF THE STOCKHOLDER PROVIDED FOR IN THIS AGREEMENT, THE STOCKHOLDER HEREBY GRANTS TO NIPRO AND THE ACQUISITION CORPORATION, ACTING TOGETHER OR SEVERALLY AND WITH FULL POWER OF SUBSTITUTION, AN IRREVOCABLE PROXY TO VOTE THE SUBJECT SHARES AS PROVIDED IN THIS AGREEMENT. THE STOCKHOLDER AGREES THAT THIS PROXY IS COUPLED WITH AN INTEREST AND WILL BE IRREVOCABLE DURING THE TERM OF THIS AGREEMENT. THE STOCKHOLDER WILL TAKE SUCH FURTHER ACTIONS OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE REQUESTED BY NIPRO AND THE ACQUISITION CORPORATION TO EFFECTUATE THE INTENT OF THIS PROXY. THE STOCKHOLDER HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDER WITH RESPECT TO THE SUBJECT SHARES AND AGREES NOT TO GRANT ANY PROXY THAT CONFLICTS OR IS INCONSISTENT WITH THE PROXY GRANTED TO NIPRO AND THE ACQUISITION CORPORATION IN THIS AGREEMENT.
(f) The Stockholder agrees not to (i) sell, transfer, tender pursuant to a tender offer, pledge, encumber, assign or otherwise dispose ofof or hypothecate (including by gift or by contribution or distribution to any trust or similar instrument or to any beneficiaries of the Stockholder) (collectively, “Transfer”), or enter into any contract, option or other arrangement or understanding (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, Transfer of any of the Subject Shares to any person other than Purchaser or Purchaser's designee or pursuant to the terms of this Agreement, (ii) enter into any voting arrangementarrangement or understanding with respect to the Subject Shares, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (iiiii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead tomake the Stockholder’s representations or warranties contained in this Agreement untrue or inaccurate or could reasonably be expected to have the effect of preventing or disabling the Stockholder from performing any of his, any Takeover Proposalher or its obligations under this Agreement. Notwithstanding anything contained herein to the contrary, or (iiithe restrictions contained in this Section 1(f) enter into any agreement will not apply with respect to or approve or recommend any Takeover ProposalTransfer of Subject Shares by the Stockholder pursuant to applicable laws of descent and distribution; provided that any proposed transferee must agree to take such Subject Shares subject to and to be fully bound by the terms of this Agreement applicable to such Subject Shares by executing a joinder to this Agreement in a form reasonably acceptable to Nipro and Acquisition Corporation and delivering such executed joinder to Nipro and the Acquisition Corporation as soon as practicable after such Transfer.
(eg) So long as the Merger Agreement has not been terminated, the The Stockholder shall tender pursuant hereby authorizes and requests HDI and its counsel to the Offer, and not withdraw, notify HDI’s transfer agent that there is a stop transfer order with respect to all of the Subject Shares and that this Agreement places limits on the voting of the Subject Share). The Stockholder agrees with, and covenants to, Nipro and the Acquisition Corporation that the Stockholder will not request that HDI register the Transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of the Subject Shares, unless such Transfer is made in compliance with this Agreement. In the event of a stock dividend or distribution, or any change in the shares of Common Stock by reason of any recapitalization, stock split, combination of shares, exchange of shares or the like, the term “Subject Shares” will be deemed to refer to and include the Subject Shares as well as all such stock dividends and distributions and any shares or other securities into which or for which any or all of the Subject Shares may be changed or exchanged. The Stockholder will be entitled to receive and retain any cash dividend paid by HDI during the term of this Agreement until the Subject Shares are canceled in the Merger.
(h) THE STOCKHOLDER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS WHICH THE STOCKHOLDER MAY HAVE AS TO APPRAISAL, DISSENT OR ANY SIMILAR OR RELATED MATTER WITH RESPECT TO THE MERGER, THE MERGER AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY.
Appears in 5 contracts
Samples: Stockholder Agreement (Home Diagnostics Inc), Stockholder Agreement (Home Diagnostics Inc), Stockholder Agreement (Home Diagnostics Inc)
Covenants of the Stockholder. The Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares that are Shares 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 stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares that are Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser or Purchaser's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover ProposalProposal , or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares that are Shares.
(f) In the event of a Takeover Proposal, the Stockholder shall, as soon as practicable after receipt of a written request from Parent or Purchaser (in the sole discretion of Parent or Purchaser) and to the fullest extent permissible under the Restated Certificate of Incorporation of the Company, as amended (the "Restated Certificate of Incorporation"), convert any Nonvoting Shares into Shares pursuant to the terms of Part 4 of the Restated Certificate of Incorporation, and any Nonvoting Shares so converted into Shares shall be treated for all purposes as Shares subject to the terms and restrictions of this Agreement. Notwithstanding the previous sentence, the Stockholder agrees not to convert any of the Nonvoting Shares into Shares without the prior written consent of Parent.
Appears in 5 contracts
Samples: Merger Agreement (Pamida Holdings Corp/De/), Merger Agreement (Shopko Stores Inc), Stockholder and Purchase Agreement (Citigroup Inc)
Covenants of the Stockholder. The Stockholder Until the termination of this Agreement in accordance with Section 5, the Stockholder, in its capacity as such, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger and the Merger Agreement eMerge (“eMerger Meeting”) or at any adjournment adjournment, postponement or continuation thereof or in any other circumstances occurring prior to the eMerge Meeting upon which a vote, consent or other approval (including by written consent) with respect to the Merger and the Merger Agreement is soughtsought , the Stockholder shall vote (or cause to be voted) the Subject Shares (and each class thereof) (i) in favor of the approval of each matter recommended by the Board of Directors of eMerge to be undertaken in connection with the Merger, including, if required, the approval and adoption of the Merger Agreement and the approval transactions contemplated hereby and any matter that could reasonably be expected to facilitate the Merger; (ii) in favor of any alternative structure as may be agreed upon by the Company, Shield, Merger Sub and eMerge to reflect the acquisition by Shield of control of eMerge, provided that such alternative structure is on terms in the aggregate no less favorable to the Stockholder than the terms thereof and each of the other transactions contemplated by the Merger Agreement.
; and (biii) At any meeting of stockholders except with the written consent of the Company or at Company, against any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is soughtTakeover Proposal, the Stockholder shall vote (consummation of any Superior Proposal or cause to be voted) the Subject Shares against (i) any merger action, proposal, or agreement or merger transaction (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or the transaction contemplated thereby) that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of eMerge under the Merger Agreement which could result in any of the conditions to eMerge’s obligations under the Merger Agreement not being fulfilled or which could be inconsistent with the Merger or any other transactions transaction contemplated by the Merger Agreement.
(c) The . Any such vote shall be cast or consent shall be given in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the results of such vote or consent. Such Stockholder agrees not to enter into any agreement or commitment with any person the effect of which would be inconsistent with or violative of the provisions and agreements contained in this Section 3(a). This Agreement is intended to bind the Stockholder as a stockholder of eMerge only with respect to the specific matters set forth herein.
(b) Such Stockholder agrees not to, directly or indirectly, (i) sell, transfer, tender, pledge, encumber, assign or otherwise dispose ofof (collectively, a “Transfer”) or enter into any contractagreement, option or other arrangement (including any profit sharing arrangement) with respect to, or consent to the sale, transfer, pledge, assignment or other disposition a Transfer of, or convert or agree to convert, any or all of the Subject Shares to any person person, other than Purchaser or Purchaser's designee in accordance with the Merger Agreement, or (ii) grant any proxies (other than eMerge proxy card in connection with the eMerge Meeting if and to the extent such proxy is consistent with the Stockholder’s obligations under Section 3(a) hereof), deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, other than pursuant to this Agreement. Such Stockholder further agrees not to commit or agree to take any of the foregoing actions or take any action that would have the effect of preventing, impeding, interfering with or adversely affecting its ability to perform its obligations under this Agreement.
(c) The Stockholder shall not, nor shall such Stockholder permit any controlled affiliate of such Stockholder to, nor shall such Stockholder act in connectionconcert with or permit any controlled affiliate to act in concert with any person to make, or in any manner participate in, directly or indirectly, a “solicitation” (as such term is used in the rules of the Securities and Exchange Commission (“SEC”)) of proxies or powers of attorney or similar rights to vote, or seek to advise or influence any person with respect to the voting of, any shares of Stock intended to facilitate any Takeover Proposal or to cause stockholders of eMerge not to vote to approve and adopt the matters recommended by the eMerge Board of Directors in connection with the Merger. Such Stockholder shall not, and shall direct any investment banker, attorney, agent or other adviser or representative of such Stockholder not to, directly or indirectly, through any officer, director, agent or otherwise, enter into, solicit, initiate, conduct or continue any discussions or negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or provide any information to, any person, other the Company, relating to any Takeover Proposal. Such Stockholder hereby represents that, as of the date hereof, it is not engaged in discussions or negotiations with any party other than the Company with respect to any Takeover Proposal.
(d) The Stockholder shall not, nor shall agrees that any shares of Stock of eMerge that the Stockholder permit any investment banker, attorney purchases or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, which the Stockholder shall tender pursuant otherwise acquires beneficial ownership after the date of this Agreement and prior to the OfferTermination Date (“New Shares”), and not withdrawany and all other shares or securities of eMerge issued, all exchanged, issuable or exchangeable in respect of New Shares shall be subject to the Subject Sharesterms and conditions of this Agreement to the same extent as if they constituted shares of Stock.
Appears in 5 contracts
Samples: Voting and Lock Up Agreement, Voting and Lock Up Agreement (Emerge Interactive Inc), Voting and Lock Up Agreement (Emerge Interactive Inc)
Covenants of the Stockholder. The From and after the date hereof through and including the Termination Date, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval adoption of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Agreement, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 Proposal, or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal proposal, transaction or transaction agreement involving the Company or any of its subsidiaries, which amendment or other proposal proposal, transaction or transaction agreement would in any manner impede, frustrate, prevent prevent, delay or nullify the Offer, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to to, directly or indirectly (i) sell, transfer, pledge, assign or otherwise dispose ofof (including by gift), or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition ("Transfer") of, the Subject Shares to any person other than Purchaser Sub or PurchaserSub's designee designee; provided, that nothing contained herein will be deemed to restrict (A) the exercise or conversion of any stock option, (B) the entry by the Stockholder into "hedging" or similar economic transactions with respect to the Subject Shares so long as such "hedging" or similar economic transactions do not restrict or otherwise inhibit the Stockholder's ability to vote the Subject Shares in accordance with the requirements of this Agreement and to otherwise comply with the covenants and agreements of the Stockholder contained herein, or (C) the Transfer of any Subject Shares to any person who agrees to be bound by the terms and conditions of this Agreement pursuant to a written agreement in a form reasonably satisfactory to Parent, or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Subject to Section 10, the Stockholder shall not, nor shall the Stockholder permit any investment banker, attorney or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, of any Takeover Proposal or proposal to acquire the Subject Shares or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, Proposal or (iii) enter into any agreement with respect proposal to or approve or recommend any Takeover Proposalacquire the Subject Shares.
(e) So long as The Stockholder agrees to validly tender all of the Merger Subject Shares within 10 business days following commencement of the Offer pursuant to and in accordance with the terms of the Offer and, provided that this Agreement has not been terminated, the Stockholder shall tender pursuant agrees not to withdraw any Subject Shares so tendered prior to the Offer, and not withdraw, all termination of the Subject SharesOffer.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Oratec Interventions Inc), Stockholder Agreement (Oratec Interventions Inc), Stockholder Agreement (Oratec Interventions Inc)
Covenants of the Stockholder. The Stockholder agrees as follows:
(a) The Stockholder shall not, directly or indirectly, (i) sell, transfer (including by operation of law), pledge, assign or otherwise encumber or dispose of, or enter into any agreement, option or other arrangement (including any profit sharing arrangement) or understanding with respect to any of the Securities to any person other than Parent or Parent’s designee, (ii) deposit any Securities into a voting trust or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney, attorney-in-fact, agent or otherwise, with respect to the Securities, except as contemplated by this Agreement, or (iii) take any other action that would in any way make any representation or warranty of the Stockholder herein untrue or incorrect in any material respect or otherwise restrict, limit or interfere in any material respect with the performance of the Stockholder’s obligations hereunder or the transactions contemplated hereby.
(b) At any meeting of stockholders 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 (including by written consent) is sought with respect to the Merger and the Merger Agreement is soughtAgreement, the Stockholder shall vote (or cause to be voted) the Subject Shares number of its Securities set forth in Part II of Exhibit A hereto in favor of the Merger, the approval adoption of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by this Agreement or the Merger Agreement.
(bc) At any The Stockholder shall take, or cause to be taken, all reasonable actions, and to do, or cause to be done, and to assist and cooperate with the Company and Parent in doing, all things reasonably necessary to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement, including, without limitation, (i) causing the Company to call the Company Stockholders’ Meeting for the purpose of considering, acting upon and voting upon the approval and adoption of the Merger Agreement, the Merger and all other transactions contemplated by the Merger Agreement (or executing valid and effective written consents in lieu of a meeting of the holders of the minimum number of shares of Company Common Stock required to approve the Merger Agreement, the Merger and all other transactions contemplated by the Merger Agreement), (ii) attending, if applicable, the Company Stockholders’ Meeting or any adjournment thereof (or executing valid and effective proxies to any other attending participant of a Company Stockholders’ Meeting in lieu of attending such Company Stockholders’ Meeting or any adjournment thereof), and (iii) causing the Company to postpone or adjourn, at Parent’s request, the Company Stockholders’ Meeting on one occasion for up to fifteen (15) Business Days (but in any event no later than the Outside Date) (x) in order to solicit additional proxies for the purpose of obtaining the Company Stockholder Approval (unless prior to such adjournment the Company shall have received an aggregate number of proxies voting for the adoption of the Merger Agreement, which have not been withdrawn, such that the condition in Section 8.01(b) of the Merger Agreement will be satisfied at such meeting), (y) if a quorum is not present or (z) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated to, and reviewed by, the stockholders of the Company prior to the Company Stockholders’ Meeting.
(d) The Stockholder shall not, directly or at indirectly, through any adjournment thereof officer, director, agent or other representative, (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action to facilitate, any inquiries or the making of any proposal or offer (including any proposal or offer to the Company’s stockholders) with respect to any Competing Transaction (a “Competing Proposal”) or (ii) enter into, maintain, continue or otherwise engage or participate in any other circumstances upon which discussions or negotiations with any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction. The Stockholder shall, and shall direct or cause its representatives and agents to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may be ongoing with respect to (or that could be reasonably expected to lead to) a Competing Proposal. The Stockholder shall promptly notify Parent, orally and in writing, after the Stockholder's votereceipt by the Stockholder of any proposal, consent inquiry, offer or other approval is soughtrequest (or any amendment thereto) with respect to a Competing Transaction including any request for discussions or negotiations. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the terms and conditions (if any) of such proposed Competing Transaction.
(e) The Stockholder shall vote (or cause to be voted) the Subject Shares its Securities against (i) any merger agreement or merger (other than the Merger Agreement Competing Proposal and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment action, proposal, transaction or agreement which would reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Merger or the fulfillment of Parent’s, the Company's certificate of incorporation ’s or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, Merger Sub’s conditions under the Merger Agreement or change in any manner the voting rights of any security of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement Company (including by any profit sharing arrangement) with respect amendments to the sale, transfer, pledge, assignment Company’s charter or other disposition of, the Subject Shares to any person other than Purchaser or Purchaser's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposalbylaws).
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 4 contracts
Samples: Voting Agreement (HeartWare International, Inc.), Voting Agreement (HeartWare International, Inc.), Voting Agreement (HeartWare International, Inc.)
Covenants of the Stockholder. The Stockholder agrees as follows:: ----------------------------
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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 stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser or Purchaser's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 4 contracts
Samples: Stockholder Agreement (Shopko Stores Inc), Stockholder Agreement (Pamida Holdings Corp/De/), Stockholder Agreement (Pamida Holdings Corp/De/)
Covenants of the Stockholder. The Stockholder agrees as follows:
(a) The Stockholder shall not, except as contemplated by the terms of this Agreement, (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) or understanding with respect to the sale, transfer, pledge, assignment or other disposition of, the Shares (including any options or warrants to purchase Company Common Stock) to any person other than Parent, Merger Sub or Merger Sub's designee, (ii) enter into any voting arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney or otherwise, with respect to the Shares or (iii) take any other action that would in any way restrict, limit or interfere with the performance of its obligations hereunder or the transactions contemplated hereby.
(b) Other than pursuant to a fiduciary duty as a director or officer of the Company and as permitted in Sections 7.2 and 9.5 of the Merger Agreement, until the Merger is consummated or the Merger Agreement is terminated, the Stockholder shall not, nor shall the Stockholder permit any investment banker, financial adviser, attorney, accountant or other representative or agent of the Stockholder to, directly or indirectly (i) solicit, initiate or encourage (including by way of furnishing nonpublic information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes any Acquisition Proposal (as defined in the Merger Agreement) or (ii) participate in 4 5 any discussions or negotiations regarding any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by an investment banker, financial advisor, attorney, accountant or other representative or agent of the Stockholder shall be deemed to be a violation of this Section 4(b) by the Stockholder.
(c) At any meeting of stockholders 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 (including by written consent) with respect to the Merger and the Merger Agreement is sought, the Stockholder shall shall, including by executing a written consent if requested by Parent, vote (or cause to be voted) the Subject Stockholder's Shares in favor of the Merger, the approval adoption by the Company 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 stockholders Stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Stockholder's Shares against (i) any merger action or agreement that would result in a breach in any material respect of any covenant, representation or merger (warranty or any other than obligation or agreement of the Company under the Merger Agreement and or of the Stockholder hereunder, (ii) any action or agreement that would impede, interfere with, delay, postpone or attempt to discourage the Merger), consolidationincluding, combinationbut not limited to: (A) any Acquisition Proposal, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (iiB) any amendment of the Company's certificate articles of incorporation organization or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
Agreement or change in any manner the voting rights of any class of the Company's capital stock; (cC) any change in the management or board of directors of the Company; (D) any material change in the present capitalization or dividend policy of the Company; and (E) any other material change in the Company's corporate structure or business (collectively, "Frustrating Transactions"). The Stockholder further agrees not to (i) sell, transfer, pledge, assign commit or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect agree to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser or Purchaser's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or inconsistent with the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposalforegoing.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 3 contracts
Samples: Stockholder Agreement (Fil Acquisition Corp), Stockholder Agreement (Fil Acquisition Corp), Stockholder Agreement (Fil Acquisition Corp)
Covenants of the Stockholder. The Stockholder agrees as follows:: ----------------------------
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate articles of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser Sub or PurchaserSub's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 3 contracts
Samples: Merger Agreement (Smith & Nephew Inc), Merger Agreement (Exogen Inc), Merger Agreement (Smith & Nephew Holdings Inc)
Covenants of the Stockholder. (a) The Stockholder agrees as follows:
to attend the meeting of stockholders of the Parent to be called with respect to the Merger (aincluding any adjournment thereof) in person or by proxy. At any meeting of stockholders of the Company Parent 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 Stockholder shall vote (or cause to be voted) the Subject Shares Shares, and any other voting securities of the Parent, owned by Stockholder whether issued heretofore or hereafter, that such person owns or has the right to vote, in favor of the Merger, the approval adoption by the Parent of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Agreement, including, if required, in favor of the issuance of warrants to the Company and/or Xxxxx X. Xxxxxxx.
(b) At any meeting of stockholders of the Company Parent or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares Shares, and any other voting securities of the Company, owned by Stockholder whether issued heretofore or hereafter, that such person owns or has the rights to vote, 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 Parent or any other Takeover Proposal Acquisition Transaction, or (ii) any amendment of the CompanyParent's certificate of incorporation or by-laws or other proposal or transaction involving the Company Parent 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 AgreementAgreement or which could result in any of the conditions to the Parent's obligations under the Merger Agreement not being fulfilled.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser or Purchaser's designee or (ii) enter into any voting arrangement, whether by proxy, voting arrangement, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover ProposalAcquisition Transaction.
(d) The Until the Merger Agreement is terminated and subject to Section 8 hereof, the Stockholder shall not, nor and shall the Stockholder permit use his best efforts to cause any investment banker, attorney or other adviser or representative of the Stockholder not to, (i) directly or indirectly solicit, initiate or knowingly encourage the submission of, any Takeover Proposal Acquisition Transaction or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or knowingly take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may would reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover ProposalAcquisition Transaction.
(e) So long as To secure the Merger Agreement has not been terminatedStockholder's commitments set forth in this Section 3, the Stockholder constitutes and appoints the Company or its officers and each of them, with full power of substitution, to be his true and lawful proxy and attorney-in-fact from the date hereof until conclusion of the meeting of stockholders of the Parent as provided in this Section 3 (including any adjournment or adjournments thereof) to vote all Subject Shares then beneficially owned by the Stockholder in accordance with this Section 3. This proxy shall tender pursuant to the Offerbe deemed coupled with an interest, and not withdrawis irrevocable during the term of this Agreement and will survive death, incompetency and disability of the Stockholder. To the extent inconsistent with this Section 3 hereof, the Stockholder hereby revokes any and all of previous proxies or written consents with respect to the Subject Shares.
Appears in 3 contracts
Samples: Stockholder Agreement (Room Plus Inc), Stockholder Agreement (Room Plus Inc), Stockholder Agreement (Room Plus Inc)
Covenants of the Stockholder. The Stockholder Up to and including the ----------------------------- Option Expiration Date, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval adoption by the Company of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Agreement, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) other than by operation of law, sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser Sub or PurchaserSub's designee or designee, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover ProposalProposal or (iii) convert the Subject Shares into Common Stock (except as required to effect the transaction contemplated by Section 1 of this Agreement).
(d) The Until the Merger is consummated or the Merger Agreement is terminated, the Stockholder shall not, nor shall the Stockholder it permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 3 contracts
Samples: Stockholder Agreement (Curtis Helene Industries Inc /De/), Stockholder Agreement (Conopco Acquisition Co Inc), Stockholder Agreement (Curtis Helene Industries Inc /De/)
Covenants of the Stockholder. The From and after the date hereof ---------------------------- through and including the termination of this Agreement, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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 Acquisition Proposal or (ii) any amendment of the Company's certificate articles of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder hereby agrees that, except as contemplated by this Agreement and the Merger Agreement, the Stockholder shall not to (i) sell, transfer, pledge, assign or otherwise dispose of, of (including by gift) or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of (collectively, "Transfer"), or consent to or permit -------- any Transfer of, any or all of the Subject Shares to or any person other than Purchaser or Purchaser's designee interest therein or (ii) enter into grant any voting arrangement, whether by proxy, voting agreement power-of-attorney or otherwise, other authorization in connection, directly or indirectly, with respect to the Subject Shares. Nothing in this Agreement shall prevent the conversion of the Subject Shares into other property in accordance with a statutory merger or share exchange or restrict in any Takeover Proposalmanner the Stockholder's right to transfer or alienate such property.
(d) The Stockholder acknowledges that it is bound by the provisions of Section 7.1 of the Merger Agreement and shall not, nor shall the Stockholder permit any investment banker, attorney or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, of any Takeover Acquisition Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Acquisition Proposal, or (iii) enter into any agreement with respect unless and solely to or approve or recommend any Takeover Proposalthe extent expressly permitted under Section 7.1 of the Merger Agreement.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall hereby agrees to validly tender pursuant to and in accordance with the terms of the Offer, and not withdrawas soon as practicable after commencement but in no event later than the then scheduled expiration date of the Offer, all of the Subject Shares by physical delivery of the certificates therefor (if such Subject Shares are certificated in the name of Stockholder), and not to withdraw such Subject Shares, except following a termination of the Offer pursuant to its terms. If such Subject Shares are currently held in the name of a broker or other nominee, Stockholder shall instruct the broker or nominee to deliver the securities by a book-entry transfer or other customary electronic means for delivery of securities in connection with a tender offer. Stockholder hereby authorizes Parent and Merger Sub to publish and disclose in the Offer Documents and, if approval of the Company's stockholders is required under applicable law, the Proxy Statement (including all documents and schedules filed with the SEC) Stockholder's identity and ownership of the Subject Shares and the nature of Stockholder's commitments, arrangements and understandings under this Agreement.
(f) Grant of Irrevocable Proxy;
Appears in 2 contracts
Samples: Stockholder Agreement (Headhunter Net Inc), Stockholder Agreement (Headhunter Net Inc)
Covenants of the Stockholder. The Until such time as this ----------------------------- Agreement is terminated pursuant to Section 5 hereof, the Stockholder covenants and agrees as follows:
(a1) At any meeting of the stockholders of the Company called to vote upon seek the Merger and the Merger Agreement or at any adjournment thereof Company Stockholder Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent in lieu of a meeting of stockholders) with respect to the Merger and Agreement, any other Transaction Agreement, the Merger Agreement or any other Transaction is sought, the Stockholder shall shall, including by executing a written consent if requested by Parent, vote (or cause to be voted) the Subject Shares in favor of granting the MergerCompany Stockholder Approval.
(2) The Stockholder hereby grants to and appoints Parent, and the President of Parent and the Treasurer of Parent, in their respective capacities as officers of Parent, and any individual who shall hereafter succeed to any such office of Parent, and any other designee of Parent, each of them individually, the approval Stockholder's proxy and attorney-in-fact (with full power of substitution) to vote or act by written consent with respect to the Merger Agreement Subject Shares in accordance with this Section 3. This proxy is coupled with an interest and shall be irrevocable during the term of this Agreement, and the approval Stockholder will take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy and hereby revokes any proxy previously granted by it with respect to the terms thereof and each of the other transactions contemplated by the Merger AgreementSubject Shares.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares against (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, (ii) any Company or any other Takeover Proposal or and (iiiii) any amendment of the Company's certificate of incorporation Company Charter or bythe Company By-laws or other proposal or transaction trans action involving the Company or any of its subsidiariesCompany Subsidiary, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, any provi sion of the Merger Agreement or any of the other transactions contemplated by Transaction Agreement, the Merger Agreementor any other Transaction or change in any manner the voting rights of any class of Company Capital Stock. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing.
(c) In order to induce Parent and Sub to enter into the Merger Agreement, the Stockholder shall validly tender (or cause the record owner of such shares to validly tender), and not to withdraw, pursuant to and in accordance with the terms of the Offer, in a timely manner for acceptance by Sub in the Offer, the Subject Shares; provided that there has been no modification or amendment to the terms of the Offer which would require the consent of the Company pursuant to Section 1.01 of the Merger Agreement as in effect on the date hereof, including, without limitation, any waiver or reduction of the Minimum Tender Condition which would require the consent of the Company pursuant to such Section 1.01. The Stockholder acknowledges and agrees that Parent's and Sub's obligation to accept for payment and pay for the Company Common Stock in the Offer, including the Subject Shares, is subject to the terms and conditions of the Offer.
(d) The Stockholder shall permit Parent and Sub to publish and disclose in the Offer Documents and, if approval of the Company's stockholders is required under applicable law, the Proxy Statement (including all documents and schedules filed with the SEC) its identity and ownership or other rights with respect to the Company Common Stock and the nature of its commitments, arrangements and under standings under this Agreement.
(e) Except as contemplated by this Agreement and the Merger Agreement, the Stockholder shall not to (i) selltransfer (which term shall include, transferwithout limitation, pledgeany sale, assign gift, pledge or otherwise dispose other disposition), or consent to any transfer of, any or all of the Subject Shares or any interest therein, (ii) enter into any contract, option or other arrangement agreement or understanding with respect to any transfer of any or all of the Subject Shares or any interest therein, (including iii) grant any profit sharing arrangement) proxy, power-of-attorney or other authorization in or with respect to the saleSubject Shares, transfer, pledge, assignment or other disposition of, (iv) deposit the Subject Shares to any person other than Purchaser into a voting trust or Purchaser's designee or (ii) enter into any voting arrangement, whether by proxy, a voting agreement or otherwisearrangement with respect to the Subject Shares or (v) take any other action that would in any way restrict, in connection, directly limit or indirectly, interfere with any Takeover Proposalthe performance of its obligations hereunder or the transactions contemplated hereby or by the Merger Agreement.
(df) The Stockholder shall not, nor shall the Stockholder it authorize or permit any officer, director, partner, affiliate or employee of, or any investment banker, attorney or other adviser advisor or representative of of, the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iiiii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal. If the Company is engaged in discussions or negotiations with, or (iiihas furnished information to, a person making a Company Superior Proposal as permitted by Section 5.02(a) enter into of the Merger Agreement, the foregoing provisions of this Section 3(f) shall not prohibit or restrict the Stockholder or any of its officers, directors, partners, affiliates or employees, or investment bankers, attorneys or other advisors or representatives, from participating in discussions or negotiations regarding, or furnishing any person any information with respect to, a Company Superior Proposal or any agreement (an "Alternative Stockholder Agreement") --------------------------------- regarding the voting or disposition of the Subject Shares proposed or requested by the person making such Company Superior Proposal to be entered into in connection with such Company Superior Proposal, during such time as the Company is permitted to furnish information and participate in discussions or negotiations regarding such Company Superior Proposal in accordance with Section 5.02(a) of the Merger Agreement; provided, however, that the Stockholder shall -------- ------- promptly advise Parent orally and in writing of the material terms of any Alternative Stockholder Agreement being proposed or requested by the Person making such Company Superior Proposal; and provided further that any information -------- ------- relating to the Company furnished pursuant to this sentence shall be subject to a customary confidentiality agreement if such an agreement would be required under Section 5.02(a) of the Merger Agreement. The Stockholder promptly shall advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or request for information made to the Stockholder with respect to or approve 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 recommend inquiry or request for information and the material terms of any such Company Takeover ProposalProposal or inquiry or request for information.
(eg) So long as the Merger Agreement has not been terminated, the The Stockholder shall tender pursuant not issue any press release or make any other public statement with respect to the Offer, the Merger and not withdrawthe other Transactions without the prior consent of Parent, except as may be required by applicable law.
(h) The Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other Transactions.
(i) The Stockholder hereby consents to and approves the actions taken by the Company Board in approving the Transaction Agreements, the Merger and the other Trans actions. The Stockholder hereby waives, and agrees not to exercise or assert, any appraisal rights under Section 262 of the Subject SharesDGCL in connection with the Merger.
(j) Notwithstanding anything in this Agreement to the contrary, the covenants and agreements set forth herein shall not prevent (i) any of the Stockholder's designees, partners or affiliates serving on the Company's Board of Directors from taking any action, subject to applicable provisions of the Merger Agreement, while acting in such capacity as a director of the Company, or (ii) the Stockholder entering into an Alternative Stockholder Agreement in connection with a Company Superior Proposal at such time as the Company enters into a Company Acquisition Agreement with respect to such Company Superior Proposal in accordance with Section 5.02(b) of the Merger Agreement.
Appears in 2 contracts
Samples: Stockholder Agreement (Union Texas Petroleum Holdings Inc), Stockholder Agreement (Atlantic Richfield Co /De)
Covenants of the Stockholder. The Up to and including the Option Expiration Date, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate articles of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser Sub or PurchaserSub's designee or designee, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover ProposalProposal or (iii) convert the Subject Shares which are Owned Class B Shares into Common Stock (except as required to effect the transaction contemplated by Section 1 of this Agreement).
(d) The Until the Merger is consummated or the Merger Agreement is terminated, the Stockholder shall not, nor shall the Stockholder he permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder (i) shall not sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Owned Common Shares to any person other than Sub or Sub's designee and (ii) shall tender pursuant to the Offer, and not withdraw, all Owned Common Shares which are not Subject Shares; provided, however, that the Stockholder may transfer to a Permitted Transferee (as defined in the Amended and Restated Articles of Incorporation of the Company) Owned Class B Shares that do not constitute Subject SharesShares if such Permitted Transferee agrees in writing (x) to perform the obligations of the Stockholder under Section 1(d) hereof with respect to such transferred Owned Class B Shares (as though no such transfer had occurred) and (y) so long as the Merger Agreement has not been terminated, to not convert such transferred Owned Class B Shares into Common Stock and to not otherwise take any of the actions referred to in clause (i), it being understood and agreed that any breach of the foregoing by such Permitted Transferee shall constitute a breach by the Stockholder of this Agreement.
Appears in 2 contracts
Samples: Stockholder Agreement (Wallace Computer Services Inc), Stockholder Agreement (Graphic Industries Inc)
Covenants of the Stockholder. The Unless and until the occurrence of a public announcement of an Alternative Proposal or a Merger Co. Increase in which case the covenants set forth in this Section 4 shall terminate, the Stockholder agrees as follows:
(a) The Stockholder shall not (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any Contract, option or other arrangement (including any profit sharing arrangement) or understanding with respect to the sale, transfer, pledge, assignment or other disposition of the Shares to any person other than Merger Co. or Merger Co.'s designee, (ii) enter into any voting arrangement, whether by proxy, voting agreement, voting trust, power- of-attorney or otherwise, with respect to the Shares or (iii) take any other action that would in any way restrict, limit or interfere with the performance of its obligations hereunder or the transactions contemplated hereby.
(b) At any meeting of stockholders 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 (including by written consent) with respect to the Merger and the Merger Agreement is sought, the Stockholder shall shall, including by initiating a written consent solicitation if requested by Merger Co., vote (or cause to be voted) the Subject Stockholder's Shares in favor of the Merger, the approval adoption by the Company 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 stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Stockholder's Shares 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 Alternative Proposal (collectively, "Alternative Transactions") or (ii) any amendment of the Company's certificate Articles of incorporation Incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify nullify, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger AgreementAgreement (collectively, "Frustrating Transactions").
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser or Purchaser's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 2 contracts
Samples: Option Agreement (Rollins Truck Leasing Corp), Option Agreement (Matlack Systems Inc)
Covenants of the Stockholder. The Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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 stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser or Purchaser's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares at the request of Purchaser if the Stockholder's tender is required to enable Purchaser to (i) satisfy the Minimum Condition under the Merger Agreement or (ii) acquire 90 percent of the outstanding Shares.
Appears in 2 contracts
Samples: Stockholder Agreement (Pamida Holdings Corp/De/), Stockholder Agreement (Shopko Stores Inc)
Covenants of the Stockholder. The Stockholder hereby covenants and agrees as follows:
(a) At any meeting During the Transaction Voting Period, the Stockholder will: (i) attend and participate in, either in person or by proxy (and cause all of its Subject Shares to be counted as present at), all meetings of the stockholders of the Company called to vote upon in connection with the Merger and Investment Transactions, the Merger Agreement Investment Documents (including the Purchase Agreement) and/or any other transactions contemplated thereby (including any postponements or adjournments thereof, a Transaction Meeting), and, at any adjournment thereof Transaction Meeting, or in any other circumstances upon which a vote, consent or other approval of the stockholders of the Company with respect to any of the Merger and foregoing is sought without a Transaction Meeting having been called (including, without limitation, pursuant to Section 228 of the Merger Agreement is soughtDGCL), the Stockholder shall vote its Subject Shares (or provide a written consent), or cause its Subject Shares to be voted (or cause a written consent to be voted) the Subject Shares in favor of the Mergerexecuted and delivered), for the approval of the Merger Agreement Investment Transactions and the approval of the terms thereof and each of the any other transactions contemplated by the Merger Investment Documents (including the Purchase Agreement) and any other matters relating thereto presented for approval of the stockholders of the Company; and (ii) vote its Subject Shares at any such Transaction Meeting (or provide a written consent in any other circumstances upon which a vote, consent or other approval of the stockholders of the Company with respect thereto is sought without a Transaction Meeting having been called), or cause its Subject Shares to be voted (or cause a written consent to be executed and delivered), against the approval of (A) any action set forth in Section 5.2(b) of the Purchase Agreement for which the written consent of Ipsen has not been obtained, (B) or any other action or Contract that is intended to or could reasonably be expected to impede, interfere with, delay or discourage the Investment Transactions or any other transactions contemplated by the Investment Documents and (C) except as otherwise contemplated by the Investment Documents, change the voting rights of any class of capital stock of the Company.
(b) At any meeting During the Governance Voting Period, the Stockholder will attend and participate in, either in person or by proxy (and cause all of its Subject Shares to be counted as present at), all meetings of the stockholders of the Company called (i) at which members of the Company’s board of directors (the Board) are elected or any other matters relating to the size or composition of the Board are proposed (including any postponements or adjournments thereof, a Director Meeting), and, at any adjournment thereof Director Meeting, or in any other circumstances upon which the Stockholder's a vote, consent or other approval of the stockholders of the Company with respect to any of the foregoing is soughtsought without a Director Meeting having been called (including, without limitation, pursuant to Section 228 of the Stockholder shall DGCL), vote its Subject Shares (or provide a written consent), or cause its Subject Shares to be voted (or cause a written consent to be votedexecuted and delivered): (A) in favor of each Investor Director that Investor is then entitled to designate to the Subject Shares Board pursuant to Section 2.4 of the Affiliation Agreement and, insofar as any necessary to cause any such Investor Director to be elected to the Board, withhold its vote for all other individuals nominated for election to the Board, (B) in favor of the number of authorized directors on the Board to be set and remain at nine, and against (i) any merger agreement or merger (other than change in the Merger Agreement number of authorized directors on the Board from nine, except as agreed between Ipsen and the Merger)Company, consolidation, combination, sale and (C) against any proposal to remove any Investor Director from the Board that Investor is then entitled to designate to the Board pursuant to Section 2.4 of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or Affiliation Agreement; and (ii) in connection with the Investment Transactions, the Investment Documents (including the Purchase Agreement) and/or any amendment other transactions contemplated thereby (including any postponements or adjournments thereof, a Subsequent Transaction Meeting), and, at any Subsequent Transaction Meeting, or in any other circumstances upon which a vote, consent or other approval of the Company's certificate stockholders of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or with respect to any of the other foregoing is sought without a Subsequent Transaction Meeting having been called (including, without limitation, pursuant to Section 228 of the DGCL), vote its Subject Shares (or provide a written consent), or cause its Subject Shares to be voted (or cause a written consent to be executed and delivered), (A) for the approval of any transactions contemplated by the Merger Investment Documents (including the Purchase Agreement) and any other matters relating thereto presented for approval of the stockholders of the Company, and (B) against the approval of any other action or Contract that is intended to or could reasonably be expected to impede, interfere with, delay or discourage the transactions contemplated by the Investment Documents; provided, however, that nothing in this Section 3(b)(ii) shall obligate the Stockholder with respect to any matter set forth in Section 2.7 of the Affiliation Agreement.
(c) The Stockholder agrees not hereby irrevocably grants to, and appoints Claire Giraut or Xxxxx Xxxxxx in either of their respective capacities as officers and/or directors of Investor, and any individual who shall hereafter succeed to either such individual (i) sellindividually, transferan Authorized Party and, pledgecollectively, assign or otherwise dispose ofthe Authorized Parties), 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, or enter into any contract, option execute one or other arrangement (including any profit sharing arrangement) with more written consents or approvals in respect to the sale, transfer, pledge, assignment or other disposition of, of the Subject Shares to any person other than Purchaser or Purchaser's designee or (iiin accordance with the agreements set forth in Sections 3(a) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposaland 3(b) above.
(d) The Stockholder shall nothereby confirms that the irrevocable proxy set forth in Section 3(c) is given in connection with the execution of the Purchase Agreement. The Stockholder hereby further affirms that the irrevocable proxy granted hereby is coupled with an interest and may under no circumstances be revoked during the Transaction Voting Period or the Governance Voting Period. The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof.
(e) Until the consummation of the First Closing, nor shall the Stockholder will not: (i) sell, assign, transfer or otherwise dispose of, or permit to be sold, assigned, transferred or otherwise disposed of, any investment bankerof the Subject Shares (except as Ipsen may otherwise consent in writing, attorney in Xxxxx’x sole discretion); (ii) grant any proxy, deposit any Subject Shares in a voting trust or other adviser enter into a voting agreement, power of attorney, voting trust or representative similar Contract with respect to the Subject Shares (except for this Agreement); or (iii) take any action that would make any representation or warranty of the Stockholder contained herein untrue or incorrect in any material respect or have the effect of preventing the Stockholder from the strict compliance in performance with any of its covenants and other obligations hereunder. Notwithstanding the foregoing, if the First Closing has not occurred by October 15, 2006, then this Section 3(e) shall not prohibit a transfer of the Subject Shares held by Stockholder: (i) if Stockholder is an individual: (A) up to 10% of the Subject Shares held by Stockholder to any member of Stockholder’s immediate family, or to a trust for the benefit of Stockholder or any member of Stockholder’s immediate family; or (B) upon the death of Stockholder; or (ii) if Stockholder is a partnership or limited liability company, to one or more current or former partners or members of Stockholder or to an affiliated corporation under common control with Stockholder; provided, however, that a transfer referred to in part (i) or (ii) of this sentence shall be permitted only if, as a precondition to such transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Ipsen, to be bound by all of the terms of this Agreement (including without limitation the irrevocable proxy contained herein).
(f) Until the consummation of the First Closing, the Stockholder will not and will use its commercially reasonable efforts to cause its Affiliates or any of its or their directors, officers, employees, agents or representatives not to, (i) directly negotiate, authorize, recommend, enter into or indirectly solicitpropose to enter into, initiate with any person other than Investor or encourage the submission ofpersons designated by Investor, any Takeover Proposal or Competing Transaction, (ii) directly or indirectly participate continue to engage in any pending discussions or negotiations regarding, or furnish to with any person third party concerning any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.previously proposed Competing Transaction,
Appears in 2 contracts
Samples: Voting Agreement (Tercica Inc), Voting Agreement (Ipsen, S.A.)
Covenants of the Stockholder. The Stockholder covenants and agrees as follows:
(a) At the Valeant Stockholder Meeting or any other meeting of the stockholders of the Company Valeant called to vote upon seek the Merger and the Merger Agreement or at any adjournment thereof Valeant Stockholders 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 or the Merger Agreement is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares of the Stockholder in favor of granting 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 AgreementValeant Stockholder Approval.
(b) At any meeting of stockholders of the Company Valeant or at any adjournment thereof or in any other circumstances upon which the Stockholder's ’s vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares of the Stockholder against (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or Valeant, (ii) any other Valeant Takeover Proposal or and (iiiii) any amendment of the Company's certificate of incorporation Valeant Charter or bythe Valeant By-laws or other proposal or transaction involving the Company Valeant or any of its subsidiariesSubsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, any provision of the Merger Agreement or any of the other transactions contemplated by the Merger Agreementor change in any manner the voting rights of any class of Valeant Capital Stock. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing.
(c) The Other than this Agreement, the Stockholder agrees shall not to (i) sell, transfer, pledge, assign or otherwise dispose ofof (including by gift) (collectively, “Transfer”), or enter into any contractContract, option option, derivative, hedging or other agreement or arrangement (including any profit profit- or loss-sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, the any Subject Shares to any person other than Purchaser or Purchaser's designee pursuant to the Merger, or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly with respect to any Subject Shares and shall not commit or indirectly, with agree to take any Takeover Proposalof the foregoing actions.
(d) The Subject to Section 8 below, the Stockholder shall not, nor shall the Stockholder it authorize or permit any investment banker, attorney or other adviser or representative Representative of the Stockholder to, to (i) directly or indirectly solicit, initiate initiate, knowingly encourage, induce or encourage the submission of, facilitate any Valeant Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Valeant Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations with any Person regarding, or furnish to any person Person any information with respect to, or take cooperate in any other action way with any Person (whether or not a Person making a Valeant Takeover Proposal) with respect to facilitate any inquiries Valeant Takeover Proposal or the making of any inquiry or proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any a Valeant Takeover Proposal.
(e) So long as The Stockholder shall use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger.
(f) The Stockholder hereby consents to and approves the actions taken by the Valeant Board in approving the Merger Agreement has not been terminated, the Agreement. The Stockholder shall tender pursuant to the Offerhereby waives, and agrees not withdrawto exercise or assent to, all of any appraisal rights under Section 262 in connection with the Subject SharesMerger.
Appears in 2 contracts
Samples: Voting Agreement (BIOVAIL Corp), Voting Agreement (Valeant Pharmaceuticals International)
Covenants of the Stockholder. The From and after the date hereof ---------------------------- through and including the termination of this Agreement, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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 Acquisition Proposal or (ii) any amendment of the Company's certificate articles of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder hereby agrees that, except as contemplated by this Agreement and the Merger Agreement, the Stockholder shall not to (i) sell, transfer, pledge, assign or otherwise dispose of, of (including by gift) or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of (collectively, "Transfer"), or consent to or permit any Transfer of, any or all of the Subject Shares to or any person other than Purchaser or Purchaser's designee interest therein or (ii) enter into grant any voting arrangement, whether by proxy, voting agreement power-of-attorney or otherwise, other authorization in connection, directly or indirectly, with respect to the Subject Shares. Nothing in this Agreement shall prevent the conversion of the Subject Shares into other property in accordance with a statutory merger or share exchange or restrict in any Takeover Proposalmanner the Stockholder's right to transfer or alienate such property.
(d) The Stockholder acknowledges that it is bound by the provisions of Section 7.1 of the Merger Agreement and shall not, nor shall the Stockholder permit any investment banker, attorney or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, of any Takeover Acquisition Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Acquisition Proposal, or (iii) enter into any agreement with respect unless and solely to or approve or recommend any Takeover Proposalthe extent expressly permitted under Section 7.1 of the Merger Agreement.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall hereby agrees to validly tender pursuant to and in accordance with the terms of the Offer, and not withdrawas soon as practicable after commencement but in no event later than the then scheduled expiration date of the Offer, all of the Subject Shares by physical delivery of the certificates therefor (if such Subject Shares are certificated in the name of Stockholder), and not to withdraw such Subject Shares, except following a termination of the Offer pursuant to its terms. If such Subject Shares are currently held in the name of a broker or other nominee, Stockholder shall instruct the broker or nominee to deliver the securities by a book-entry transfer or other customary electronic means for delivery of securities in connection with a tender offer. Stockholder hereby authorizes Parent and Merger Sub to publish and disclose in the Offer Documents and, if approval of the Company's stockholders is required under applicable law, the Proxy Statement (including all documents and schedules filed with the SEC) Stockholder's identity and ownership of the Subject Shares and the nature of Stockholder's commitments, arrangements and understandings under this Agreement.
(f) Grant of Irrevocable Proxy;
Appears in 2 contracts
Samples: Stockholder Agreement (Headhunter Net Inc), Stockholder Agreement (Headhunter Net Inc)
Covenants of the Stockholder. The Stockholder covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger Company, and the Merger Agreement or at any adjournment thereof or postponement thereof, called to seek the Company Stockholder Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger and Agreement, the Merger or any other transaction contemplated by the Merger Agreement is sought, the Stockholder shall shall, including by executing a written consent solicitation if requested by Parent, vote (or cause to be voted) ), in person or by proxy, the Subject Shares in favor of (i) granting the Merger, the approval Company Stockholder Approval and (ii) any proposal to adjourn any meeting of the Merger Agreement and the approval stockholders of the terms thereof and each of the other transactions contemplated by the Merger AgreementCompany which Parent supports.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares against (i) any merger agreement or merger (other than the Merger Agreement and the Merger), share exchange, consolidation, combination, dual listed structure, sale of substantial assets, issuance of securities, reorganization, recapitalization, dissolution, liquidation or liquidation, winding up or other extraordinary transaction of or by the Company or any other Takeover Proposal or Company, (ii) any Alternative Proposal (other than a Superior Proposal) and (iii) any amendment of the Company's ’s certificate of incorporation or the Company’s by-laws or other proposal or transaction involving the Company or any Subsidiary of its subsidiariesthe Company, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, any provision of the Merger Agreement or any of the other transactions agreement contemplated by the Merger Agreement, the Merger or any other transaction contemplated by the Merger Agreement or change in any manner the voting rights of any class of Company Capital Stock. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing.
(c) The Stockholder agrees hereby irrevocably grants to, and appoints, Parent, and any individual designated in writing by Parent, 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, or grant a consent or approval in respect of the Subject Shares in a manner consistent with this Section 4. The Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth in this Section 4(c) is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of the Stockholder under this Agreement. The Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of Section 212(e) of the DGCL. The irrevocable proxy granted hereunder shall automatically terminate upon the termination of Sections 4(a) and 4(b).
(d) Other than as expressly permitted by this Agreement, the Stockholder shall not to (i) sell, transfer, pledge, tender, assign or otherwise dispose ofof (including by gift) (collectively, “Transfer”), or enter into any contract, option option, agreement, understanding or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, the any Subject Shares to any person other than Purchaser or Purchaser's designee pursuant to the Merger, (ii) convert any of the shares of Company Convertible Preferred Stock in accordance with the terms thereof or (iiiii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly with respect to any Subject Shares and shall not commit or indirectly, with agree to take any Takeover Proposalof the foregoing actions.
(de) The Stockholder shall not, nor shall the Stockholder it authorize or permit any investment bankershareholder, attorney affiliate or other adviser limited or representative general partner of the Stockholder or any of their respective Representatives to, (i) directly or indirectly solicit, initiate or knowingly encourage the submission ofor facilitate any Alternative Proposal, any Takeover Proposal or (ii) directly enter into any agreement or indirectly agreement in principle with respect to an Alternative Proposal or enter into any agreement requiring the Company to abandon, terminate or fail to consummate the Merger or breach its obligations under Section 4.3 of the Merger Agreement or (iii) engage in, participate in or continue in any way any negotiations or discussions or negotiations regarding, or furnish or disclose to any person third party any information with respect to, or take any other action to facilitate Alternative Proposal. The Stockholder shall promptly, and in any inquiries or event within forty-eight (48) hours, advise Parent orally and in writing of the making receipt of any proposal Alternative Proposal or any inquiry that constitutes, or may would reasonably be expected to lead to, to any Takeover Alternative Proposal, the identity of the person making any such Alternative Proposal and a copy of such Alternative Proposal (or, where no such copy is available, a written description of the principal terms and conditions thereof).
(f) The Stockholder shall use its reasonable best efforts to take, or (iii) enter into cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder shall not issue any agreement press release or make any other public statement with respect to the Merger or approve or recommend any Takeover Proposalother transaction contemplated by the Merger Agreement without the prior consent of Parent, except as may be required by Law.
(eg) So long as The Stockholder hereby consents to and approves the actions taken by the Company Board in approving the Merger Agreement has not been terminatedAgreement, the Merger and the other transactions contemplated by the Merger Agreement. The Stockholder shall tender pursuant to the Offerhereby waives, and agrees not withdrawto exercise or assent, all any appraisal rights under Section 262 of the Subject SharesDGCL in connection with the Merger.
Appears in 2 contracts
Samples: Voting, Support and Redemption Agreement (American Capital Strategies LTD), Voting, Support and Redemption Agreement (Merisel Inc /De/)
Covenants of the Stockholder. The From and after the date hereof ---------------------------- through and including the date of termination of this Agreement pursuant to Section 7, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser Sub or PurchaserSub's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit any investment banker, attorney or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, of any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 2 contracts
Samples: Stockholder Agreement (Cobra Electronics Corp), Stockholder Agreement (Cobra Electronics Corp)
Covenants of the Stockholder. The Stockholder Until the termination of this Agreement in accordance with Section 4, the Stockholder, in its capacity as such, agrees as follows:
(a) At any meeting of stockholders 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 (including by written consent) with respect to the Merger and the Merger Agreement is soughtsought from the stockholders of the Company, the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval of the Merger Agreement and the approval and adoption of the terms thereof and each of the other transactions contemplated by the Merger Agreement. Any such vote shall be cast or consent shall be given in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the results of such vote or consent. The Stockholder agrees not to enter into any agreement or commitment with any person the effect of which would be inconsistent with or violative of the provisions and agreements contained in this Section 3(a).
(b) At any meeting of 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 of its Subsidiaries or any other Takeover Acquisition Proposal or (ii) any amendment of the Company's ’s certificate of incorporation or by-laws bylaws or other proposal or transaction involving the Company or any of its subsidiariesSubsidiaries, 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 AgreementAgreement or change in any manner the voting rights of any class of capital stock of the Company. The Stockholder further agrees not to commit or agree to take any action inconsistent with the foregoing.
(c) The Stockholder hereby appoints Xxxx Xxxxxxx and Xxxx Xxxx, and each of them individually, as the Stockholder’s proxy and attorney-in-fact, with full power of substitution and resubstitution, solely to vote or act by written consent prior to the termination of this Agreement with respect the Subject Shares in accordance with Section 3(a). This proxy is given to secure the performance of the duties of the Stockholder under this Agreement. The Stockholder shall promptly cause a copy of this Agreement to be deposited with the Company at its principal place of business. The Stockholder shall take such further action or execute such other instruments as may be reasonably necessary to effectuate the intent of this proxy. The proxy and power of attorney granted pursuant to this Section 3(c) by the Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by the Stockholder inconsistent with the proxy hereby granted. The power of attorney granted by the Stockholder herein is a durable power of attorney and shall survive the dissolution or bankruptcy of the Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement. The Stockholder represents that any proxies heretofore given in respect of the Stockholder’s Subject Shares are not irrevocable and that any such proxies are hereby revoked.
(d) Except as provided in Sections 3(a) and 3(c), the Stockholder agrees not to to, directly or indirectly, (i) sell, transfer, tender, pledge, encumber, assign or otherwise dispose ofof (collectively, a “Transfer”) or enter into any contractagreement, option or other arrangement (including any profit sharing arrangement) with respect to the saleto, transferor consent to, pledge, assignment or other disposition a Transfer of, any or all of the Subject Shares to any person other than Purchaser or Purchaser's designee person, that is inconsistent with its obligations under this Agreement, or (ii) grant any proxies, deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposalof the Subject Shares, in each case that is inconsistent with this Agreement.
(e) So long as At the Merger Agreement has not been terminatedrequest of Parent, the Stockholder shall tender pursuant use all commercially reasonable efforts to the Offertake, or cause to be taken, all actions, and not withdrawto do, or cause to be done, and to assist and cooperate with Parent in doing, all things reasonably necessary, proper or advisable to carry out the intent and purposes of the Subject Sharesthis Agreement.
Appears in 2 contracts
Samples: Voting Agreement (Global Healthcare Exchange, LLC), Voting Agreement (Neoforma Inc)
Covenants of the Stockholder. The Stockholder covenants and agrees as follows:
(a) Immediately after receiving the request of the Company and/or Parent, following the effectiveness of the Form S-4, the Stockholder shall consent to the adoption of the Merger Agreement by executing and delivering to the Company and Parent the stockholder consent in the form attached as Exhibit B hereto and the Stockholder shall not thereafter revoke, withdraw or repudiate such executed consent. Such written consent shall be coupled with an interest and, following receipt of sufficient consents to satisfy the condition set forth in Section 6.1(a) of the Merger Agreement, shall be irrevocable, except as set forth in Section 5 below.
(b) At any meeting of the stockholders of the Company Company, or at any postponement or adjournment thereof, called to seek the affirmative vote upon of the Merger and holders of the outstanding Shares to adopt 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 Agreement, the Merger or the other transactions contemplated by the Merger Agreement is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 Agreementforegoing.
(bc) Any vote required to be cast or consent required to be executed pursuant to this Section 4 shall be cast (or consent shall be given) by the Stockholder in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining whether a quorum is present.
(d) At any meeting of stockholders of the Company or at any postponement or adjournment thereof or in any other circumstances upon which the Stockholder's ’s vote, consent or other approval (including by written consent) is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares against and withhold consent with respect to (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, tender offer, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or Company, (ii) any amendment Alternative Transaction, and (iii) any other action, agreement or transaction that would reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would contained in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by Stockholder contained in this Agreement or that would impede, interfere or be inconsistent with, delay, postpone, discourage, frustrate the Merger purposes of, or adversely affect the timely consummation the Merger. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing that would be effective prior to any termination of this Agreement.
(ce) The Prior to the time the Company Stockholder agrees Approval is received, other than this Agreement, the Stockholder shall not to (i) sell, transfer, pledgeexchange, assign assign, or otherwise tender or dispose ofof (including by gift) (collectively, “Transfer”), or enter into any contract, option or other arrangement (including any profit sharing arrangement) Contract with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, the any Subject Shares to any person Person or any rights to acquire any securities or equity interests of the Company to any Person other than Purchaser or Purchaser's designee pursuant to the Merger Agreement or (ii) grant any proxies (other than any proxy to adopt the Merger Agreement at, or adjourn, the Company Stockholders Meeting or any proxy granted (that is unrelated to the Merger Agreement and the transactions contemplated thereby) in connection with the taking of any action that would not be reasonably likely to materially delay or prevent the consummation of the transactions contemplated by the Merger Agreement) or enter into any voting trust or other similar agreement or arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or any rights to acquire any securities or equity interests of the Company and shall not commit or agree to take any of the foregoing actions. Notwithstanding anything to the contrary set forth herein, the Stockholder may Transfer the Subject Shares to any Person so long as (i) such Person agrees in connectionwriting to be bound by the terms of this Agreement with respect to such Subject Shares by executing the joinder agreement attached hereto as Exhibit C and (ii) such Transfer, together with any other Transfers by such Stockholder, would not subject to the Transaction to any additional FERC or other regulatory approval requirements. Notwithstanding any such Transfers, and for the avoidance of doubt, the Stockholder shall continue to be bound by the covenants and agreements set forth in Section 4(i) for so long as such Stockholder owns Verso Junior Notes.
(f) The Stockholder hereby (i) waives, and agrees not to exercise or assert, any appraisal rights under Section 262 of the DGCL in connection with the Merger and (ii) agrees not to commence or join in, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Company or any of their respective successors or directors (A) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (B) alleging a breach of any fiduciary duty of any Person in connection with the evaluation, negotiation or entry into the Merger Agreement.
(g) The Stockholder hereby agrees that, in the event (i) of any stock dividend, stock split, recapitalization, reclassification, combination or exchange of shares of capital stock of the Company of, or affecting, the Subject Shares, (ii) that the Stockholder purchases or otherwise acquires beneficial ownership of or an interest in any shares of capital stock of the Company after the execution of this Agreement (including by conversion) or (iii) that the Stockholder voluntarily acquires the right to vote or share in the voting of any shares of capital stock of the Company other than the Subject Shares (collectively, the “New Shares”), the Stockholder shall deliver promptly to Parent written notice of its acquisition of New Shares which notice shall state the number of New Shares so acquired. The Stockholder agrees that any New Shares acquired or purchased by the Stockholder shall be subject to the terms of this Agreement, including the representations and warranties set forth in Section 1, and shall constitute Subject Shares to the same extent as if those New Shares were owned by the Stockholder on the date of this Agreement.
(h) The Stockholder agrees that it will not, and will not authorize, permit or cause its officers, directors, employees or Representatives to, directly or indirectly, take any action to solicit, encourage, initiate or engage in discussions or negotiations with, or provide any information to or enter into any agreement with any Takeover Proposal.
Person or facilitate, any inquiries or submission of proposals or offers from any person (dother than Parent, Merger Sub and/or their respective Affiliates) concerning any Alternative Transaction (other than the Merger), or resolve, agree or propose to take any such action. The Stockholder shall, and shall, if applicable, cause each of its controlled Affiliates to cease and cause to be terminated any existing activities, discussions or negotiations by the Stockholder, any controlled Affiliate of the Stockholder or any Representative of the Stockholder or its controlled Affiliates with any Persons (other than Parent, Merger Sub and the Company) conducted heretofore with respect to any Alternative Transaction; provided, that the foregoing restriction shall not apply to any Affiliate of the Stockholder party hereto that is primarily engaged in the business of providing investment banking and/or financial advisory services to third parties that (I) has not been provided with material non-public information regarding the transactions contemplated by the Merger Agreement or (II) is not acting on behalf of a Person that has been provided with any such material non-public information. Notwithstanding the foregoing, the Stockholder may respond to any unsolicited proposal regarding an Alternative Transaction by indicating that the Company is subject to a definitive agreement regarding a transaction and is unable to provide any information related to the Company or any of its Affiliates or entertain any proposals or offers or engage in any negotiations or discussions concerning an Alternative Transaction for as long as this Agreement remains in effect. The Stockholder shall not, nor shall the Stockholder permit any investment banker, attorney or other adviser or representative promptly notify Parent (but in no case later than two (2) Business Days after receipt) of the Stockholder toreceipt of any proposal for any Alternative Transaction or any inquiry, (i) directly offer or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any request for information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead toresult in, an Alternative Transaction, or any discussions or negotiations sought to be initiated or continued with the Stockholder, any Takeover Proposalof its Subsidiaries or any of its Representatives concerning an Alternative Transaction, indicating, in each case, the identity of the Person or group making such Alternative Transaction proposal, inquiry, offer or request for information and a copy of any Alternative Transaction proposal, inquiry, offer or request made in writing and the material terms and conditions of an Alternative Transaction proposal, inquiry, offer or request not made in writing, and thereafter shall keep Parent informed in reasonable detail, on a prompt basis (and, in any event, within two (2) Business Days of the Stockholder’s or its Representatives’ knowledge of any such event), of any material developments or modifications to the terms of any such Alternative Transaction proposal, inquiry, offer or request (including copies of any documents) and the status thereof. The Stockholder shall not issue any press release or make any other public statement with respect to the Merger.
(i) The Stockholder agrees that it will (i) tender any and all Verso Junior Notes owned by the Stockholder and/or any of its controlled Affiliates in the Exchange Offers, (ii) provide its consent to the transactions contemplated by the Consent Solicitations and (iii) enter into use its, his or her reasonable best efforts to take, or cause to be taken, any agreement with respect and all actions and will do, or cause to or approve or recommend any Takeover Proposalbe done, all things necessary and advisable, in each case as requested by Parent, in furtherance of the consummation of the Exchange Offers and Consent Solicitations.
(ej) So long as The Stockholder agrees that during the Merger term of this Agreement has it will not been terminated, enter into a transaction or series of related transactions that would reasonably be expected to increase the aggregate ownership of Subject Shares owned by the Stockholder shall tender pursuant to a number that, combined with the Offernumber of Shares owned by its Affiliates, and not withdrawbut for such transaction or series of related transactions, all of would result in a new requirement for the Subject SharesStockholder to obtain FERC approval in connection with the Merger.
Appears in 2 contracts
Samples: Support Agreement (Verso Paper Corp.), Support Agreement (NewPage Holdings Inc.)
Covenants of the Stockholder. The Until the termination of this Agreement in accordance with Section 6, the Stockholder agrees as follows:
(a) At any meeting of stockholders of the Company called to vote upon the Merger Debenture and Note Purchase Agreement, as the same may be amended, and the Merger Agreement transactions contemplated by the Debenture and Note Purchase Agreement, or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Debenture and Note Purchase Agreement and the Merger Agreement transactions contemplated thereby is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval of the Merger Debenture and Note Purchase Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Debenture and Note Purchase Agreement.
(b) At any meeting of stockholders of the Company or at any other adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares against (i) any merger agreement or merger (other than the Merger Agreement and the Merger)merger, consolidation, combination, sale of or substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other takeover proposal, as such term is defined in the Debenture and Note Purchase Agreement (a "Takeover Proposal Proposal") or (ii) any amendment of the Company's certificate of incorporation or by-laws bylaws or other proposal (including with respect to the election of directors) 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 Debenture and Note Purchase Agreement or any of the other transactions contemplated by the Merger Debenture and Note Purchase Agreement. Subject to Section 8, the Stockholder further agrees not to commit or agree to take any action inconsistent with the foregoing.
(c) The Except with respect to the 50,000 shares of the Subject Shares pledged by the Stockholder to Bear Steaxxx, xxe Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose ofof (including by gift) (collectively, "Transfer"), or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, the Subject Shares to any person other than Purchaser or Purchaser's designee person, or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connectionconnection with, directly or indirectly, with any Takeover Proposal. Notwithstanding the foregoing, the Stockholder shall have the right, for estate planning purposes, to Transfer Subject Shares to a transferee following the due execution and delivery to Investors by each transferee of a counterpart to this Agreement.
(d) The Subject to the terms of Section 8 hereof, during the term of this Agreement, the Stockholder shall not, in his capacity as an individual stockholder of the Company with respect to the Subject Shares, nor shall the Stockholder it permit any investment banker, attorney or other adviser or representative of the Stockholder in his capacity as an individual stockholder of the Company with respect to the Subject Shares to, (i) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement except to the extent such actions are in his capacity as a director of the Company in connection with respect actions permitted to or approve or recommend any Takeover Proposalthe Company under Section 6.2 of the Debenture and Note Purchase Agreement.
(e) So long as Until after the Merger closing contemplated by the Debenture and Note Purchase Agreement has not been is consummated or the Debenture and Note Purchase Agreement is terminated, the Stockholder shall tender pursuant use all reasonable efforts to the Offertake, or cause to be taken, all actions, and not withdrawto do, or cause to be done, and to assist and cooperate with the Company and Investors in doing, all of things necessary, proper or advisable to consummate and make effective, in the Subject Sharesmost expeditious manner practicable, the transactions contemplated by the Debenture and Note Purchase Agreement.
Appears in 2 contracts
Samples: Stockholder Agreement (Anderson Jack R), Stockholder Agreement (Safeguard Health Enterprises Inc)
Covenants of the Stockholder. The Until the termination of this Agreement in accordance with Section 7, the Stockholder severally and not jointly agrees as follows:
(a) At any meeting of stockholders 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 (including by written consent) with respect to the Merger and the Merger Agreement is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval adoption by the Company of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Agreement.. Any vote cast in accordance with this Section 3(a) or in accordance
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares against (i) any merger agreement or merger (other than Acquisition Proposal as such term is defined in Section 6.8(a) of the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiariesCompany, which amendment or other proposal or transaction would in any manner be reasonably likely to impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger AgreementAgreement or change in any manner the voting rights of the Common Stock. The Stockholder further agrees not to enter into any agreement inconsistent with the foregoing.
(c) The Stockholder agrees not shall not, prior to the earliest of (i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its terms, (x) sell, transfer, give, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), consent to any Transfer of, any or all of such Subject Shares or any interest therein or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, the Subject Shares to any person other than Purchaser pursuant to the terms of the Offer or Purchaser's designee the Merger or (iiy) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connectionconnection with, directly or indirectly, with any Takeover ProposalAcquisition Proposal and agrees not to commit or agree to take any of the foregoing actions.
(d) The Subject to the terms of Section 9, during the term of this Agreement, the Stockholder shall not, nor shall the Stockholder it permit any investment banker, financial advisor, attorney or accountant retained by, or other adviser advisor or representative of of, the Stockholder to, directly or indirectly (i) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect toincluding by way of furnishing non-public information), or take any other action to facilitate facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal or (ii) participate in any Takeover discussions or negotiations regarding an Acquisition Proposal, or (iiiprovided, that it is understood that this Section 3(d) enter into any agreement with respect will not be deemed to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not have been terminatedviolated if in response to an unsolicited inquiry, the Stockholder shall tender pursuant states that he and the Subject Shares are subject to the Offerprovisions of this Agreement. Without limiting the foregoing, and not withdraw, all it is understood that any violation of the Subject Shares.restrictions set forth in the preceding sentence
Appears in 2 contracts
Samples: Stockholder Agreement (Misys PLC), Stockholder Agreement (C Ats Software Inc)
Covenants of the Stockholder. The Stockholder covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger and the Merger Agreement Company, however called, or at any adjournment thereof or in any other circumstances upon which a votepostponement thereof, consent or other approval to seek the Company Required Vote with respect to the Merger and Agreement, the Merger or any other transactions contemplated by the Merger Agreement is soughtor any other Transaction Document (such other transactions, “Related Transactions”), the Stockholder shall appear at such meeting or otherwise cause the Subject Shares to be counted as present thereat for the purpose of establishing a quorum and the Stockholder shall vote (or cause to be voted) ), the Subject Shares of the Stockholder in favor of granting 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 AgreementCompany Required Vote.
(b) 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 soughtpostponement thereof, the Stockholder shall vote (or cause to be voted) ), the Subject Shares against of the Stockholder against, and shall not consent to (and shall cause the Subject Shares of the Stockholder not to be consented to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or Company, (ii) any other Takeover Proposal or and/or (iiiii) any amendment of the Company's certificate Company Certificate of incorporation Incorporation or by-laws the Company Bylaws or other proposal or transaction involving the Company or any Subsidiary of its subsidiariesthe Company, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, any provision of the Merger Agreement or any other Transaction Document, the Merger or any Related Transaction or change in any manner the voting rights of any capital stock of the other transactions contemplated by Company (collectively, “Frustrating Transactions”). The Stockholder shall not commit or agree to take any action inconsistent with the Merger Agreementforegoing.
(c) The Other than this Agreement, the Stockholder agrees shall not to (i) sell, transfer, pledge, assign or otherwise dispose ofof (including by gift) (collectively, “Transfer”), or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, the Subject Shares any shares of Company Common Stock to any person (other than Purchaser (1) pursuant to the Merger, (2) any pledges of Company Common Stock in favor of the lenders in connection with existing credit agreements underlying Existing Pledges (the “Existing Credit Agreements”) or Purchaser's designee any amendments to or refinancings thereto (the “Future Credit Agreements” and, together with such Existing Credit Agreements, the “Credit Agreements,” and, such pledges created pursuant to Future Credit Agreements being referred to as “Future Pledges,” and, together with the Existing Pledges, the “Pledges”), provided that the number of shares of Company Common Stock subject to all Pledges shall not at any time exceed the number of shares of Company Common Stock pledged under the Existing Pledges as of the date hereof, or (3) subject to Section 4(c), pursuant to any foreclosures on any Pledges, provided further that this clause (i) shall be construed so as to not violate any covenants or restrictions contained in any Credit Agreements or Pledges that may prohibit Stockholder from agreeing to any restrictions on Transfer that may be more restrictive than existed as of the date of such Credit Agreement, or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly with respect to any shares of Company Common Stock and shall not commit or indirectly, with agree to take any Takeover Proposalof the foregoing actions.
(d) The Stockholder and the Other Fortress Entities shall not, nor shall any of their respective officers, directors or employees, and the Stockholder shall not authorize or permit any investment banker, attorney or other adviser or representative of the Stockholder to, directly or indirectly, (i) directly or indirectly solicit, initiate initiate, encourage or encourage take any other action to facilitate any inquiries with respect to a potential Takeover Proposal or Frustrating Transaction or the submission ofof any Company Takeover Proposal or Frustrating Transaction, (ii) enter into any agreement with respect to any Takeover Proposal or Frustrating Transaction or (iiiii) directly enter into, continue or indirectly otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, constitutes or may is reasonably be expected likely to lead to, to any Takeover Proposal, Proposal or (iii) enter into Frustrating Transaction. The Stockholder promptly shall advise Parent orally and in writing of any agreement Takeover Proposal or Frustrating Transaction or inquiry made to the Stockholder with respect to or approve or recommend that is reasonably likely to lead to any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminatedProposal or Frustrating Transaction, the Stockholder shall tender pursuant to the Offer, and not withdraw, all identity of the Subject Shares.person making any
Appears in 2 contracts
Samples: Voting Agreement (Railamerica Inc /De), Voting Agreement (Genesee & Wyoming Inc)
Covenants of the Stockholder. The Stockholder agrees as follows:
(a) The Stockholder shall not, directly or indirectly, (i) sell, transfer (including by operation of law), pledge, assign or otherwise encumber or dispose of, or enter into any agreement, option or other arrangement (including any profit sharing arrangement) or understanding with respect to any of the Securities to any person other than Parent or Parent’s designee; provided, that, in the event that the Stockholder is a party, as of the date hereof, to a written plan for trading the Securities in accordance with Rule 10b5-1 under the Exchange Act (a “10b5-1 Plan”), the Stockholder may sell pursuant to such 10b5-1 Plan up to that number of Securities as permitted to be sold under such 10b5-1 Plan; provided, that, after the date hereof, the Stockholder shall not amend such 10b5-1 Plan to increase the number of Securities eligible for sale under such 10b5-1 Plan, (ii) deposit any Securities into a voting trust or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney, attorney-in-fact, agent or otherwise, with respect to the Securities, except as contemplated by this Agreement, or (iii) take any other action that would in any way make any representation or warranty of the Stockholder herein untrue or incorrect in any material respect.
(b) At any meeting of stockholders of the Company called to vote upon the Merger and the Merger Agreement or at any adjournment adjournment, postponement or recess thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent) is sought with respect to the Merger and the Merger Agreement is soughtAgreement, the Stockholder shall vote (or cause to be voted) all of the Subject Shares Securities: (i) in favor of the Merger, the approval adoption of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by this Agreement or the Merger Agreement.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or ; (ii) against any amendment inquiry, proposal, offer, indication of interest or transaction that constitutes or could reasonably be expected to lead to, an Acquisition Proposal or Acquisition Transaction relating to the Company and (iii) against any action, proposal, transaction or agreement which would reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Merger or the fulfillment of Parent’s, the Company's certificate of incorporation ’s, Merger Sub One’s or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, Merger Sub Two’s conditions under the Merger Agreement or change in any manner the voting rights of any security of the other transactions contemplated Company (including by any amendments to the Merger AgreementCompany’s charter or bylaws).
(c) The Stockholder agrees not shall use commercially reasonable efforts to (i) sell, transfer, pledge, assign or otherwise dispose oftake, or enter into any contractcause to be taken, option all reasonable actions, and to do, or other arrangement (including any profit sharing arrangement) with respect cause to be done, all things reasonably necessary to fulfill the saleStockholder’s obligations under this agreement, transferincluding, pledgewithout limitation, assignment or other disposition ofattending, if applicable, the Subject Shares Company Stockholder Meeting or any adjournment, postponement or recess thereof (or executing valid and effective proxies to any person other than Purchaser attending participant of a Company Stockholder Meeting in lieu of attending such Company Stockholder Meeting or Purchaser's designee any adjournment, postponement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposalrecess thereof).
(d) The Stockholder shall not, nor shall the Stockholder permit not exercise any investment banker, attorney or other adviser or representative rights (including under Section 262 of the Stockholder to, (iDelaware General Corporation Law) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making demand appraisal of any proposal Shares that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement arise with respect to or approve or recommend any Takeover Proposalthe Merger.
(e) So long as The Stockholder authorizes and agrees to permit Parent and Merger Sub to publish and disclose in the Merger Joint Proxy Statement/Prospectus and any related filings under the securities laws of the United States or any state thereof the Stockholder’s identity and ownership of Securities and the nature of Stockholder’s commitments, arrangements and understandings under this Agreement has not been terminated, and any other information required by applicable Law. None of the information relating to the Stockholder shall tender pursuant provided by or on behalf of the Stockholder in writing for inclusion in the Joint Proxy Statement/Prospectus will, at the respective times that the Joint Proxy Statement/Prospectus is filed with the SEC or is first mailed to the Offer, and not withdraw, all holders of the Subject SharesCompany Common Stock, contain any untrue statement of material fact or omit to state any material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 2 contracts
Samples: Voting Agreement (Entropic Communications Inc), Voting Agreement (Maxlinear Inc)
Covenants of the Stockholder. The Stockholder Until the termination of this Agreement in accordance with Section 4, the Stockholder, in its capacity as such, agrees as follows:
(a) At any meeting of stockholders 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 (including by written consent) with respect to the Merger and the Merger Agreement is soughtsought from the stockholders of the Company, the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval of the Merger Agreement and the approval and adoption of the terms thereof and each of the other transactions contemplated by the Merger Agreement. Any such vote shall be cast or consent shall be given in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the results of such vote or consent. The Stockholder agrees not to enter into any agreement or commitment with any person the effect of which would be inconsistent with or violative of the provisions and agreements contained in this Section 3(a).
(b) At Except as the Stockholder is otherwise obligated under the First Purchase Agreement and the Second Purchase Agreement (subject to the Waiver, dated as of the date hereof, among the Stockholder, University HealthSystem Consortium and the Company), 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 of its Subsidiaries or any other Takeover Acquisition Proposal or (ii) any amendment of the Company's certificate of incorporation or by-laws bylaws or other proposal or transaction involving the Company or any of its subsidiariesSubsidiaries, 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 AgreementAgreement or change in any manner the voting rights of any class of capital stock of the Company. The Stockholder further agrees not to commit or agree to take any action inconsistent with the foregoing.
(c) The Stockholder hereby appoints Xxxx Xxxxxxx and Xxxx Xxxx, and each of them individually, as the Stockholder's proxy and attorney-in-fact, with full power of substitution and resubstitution, solely to vote or act by written consent prior to the termination of this Agreement with respect the Subject Shares in accordance with Section 3(a). This proxy is given to secure the performance of the duties of the Stockholder under this Agreement. The Stockholder shall promptly cause a copy of this Agreement to be deposited with the Company at its principal place of business. The Stockholder shall take such further action or execute such other instruments as may be reasonably necessary to effectuate the intent of this proxy. The proxy and power of attorney granted pursuant to this Section 3(c) by the Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by the Stockholder inconsistent with the proxy hereby granted. The power of attorney granted by the Stockholder herein is a durable power of attorney and shall survive the dissolution or bankruptcy of the Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement. The Stockholder represents that any proxies heretofore given in respect of the Stockholder's Subject Shares are not irrevocable and that any such proxies are hereby revoked.
(d) Except as provided in Sections 3(a) and 3(c), the Stockholder agrees not to to, directly or indirectly, (i) sell, transfer, tender, pledge, encumber, assign or otherwise dispose ofof (collectively, a "Transfer") or enter into any contractagreement, option or other arrangement (including any profit sharing arrangement) with respect to the saleto, transferor consent to, pledge, assignment or other disposition a Transfer of, any or all of the Subject Shares to any person other than Purchaser or Purchaser's designee person, that is inconsistent with its obligations under this Agreement, or (ii) grant any proxies, deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, in connection, directly or indirectly, each case that is inconsistent with any Takeover Proposalthis Agreement.
(de) The Stockholder hereby represents that it is not now engaged in discussions or negotiations with any party other than Parent with respect to any Acquisition Proposal. The Stockholder shall not, nor shall the Stockholder permit authorize any investment banker, consultant, attorney or other adviser advisor or representative of the Stockholder to, directly or indirectly (i) directly or indirectly solicit, initiate or encourage knowingly encourage, induce or facilitate the making, submission ofor announcement of any Acquisition Proposal, (ii) furnish any Takeover information (including non-public information) regarding the Company to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iiiiv) enter into any agreement Contract contemplating or providing for any Acquisition Transaction; provided, however, that this Section 3(e) shall not prohibit Stockholder from furnishing any information (including non-public information) regarding the Company to, or entering into discussions or negotiations with, any Person at any such time as the Company is engaging in such activities with respect to such Person in compliance with the terms and conditions of the Merger Agreement. Any such furnishing of information, discussions or approve or recommend any Takeover Proposalnegotiations shall be conducted in accordance with Section 4.3 of the Merger Agreement.
(ef) So long as At the Merger Agreement has not been terminatedrequest of Parent, the Stockholder shall tender pursuant use all commercially reasonable efforts to the Offertake, or cause to be taken, all actions, and not withdrawto do, or cause to be done, and to assist and cooperate with Parent in doing, all things reasonably necessary, proper or advisable to carry out the intent and purposes of the Subject Sharesthis Agreement.
Appears in 1 contract
Samples: Voting Agreement (Vha Inc)
Covenants of the Stockholder. The Stockholder Until the termination of this Agreement in accordance with Section 4, the Stockholder, in its capacity as such, agrees as follows:
(a) At any meeting of stockholders 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 (including by written consent) with respect to the Merger and the Merger Agreement is soughtsought from the stockholders of the Company, the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval of the Merger Agreement and the approval and adoption of the terms thereof and each of the other transactions contemplated by the Merger Agreement. Any such vote shall be cast or consent shall be given in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the results of such vote or consent. The Stockholder agrees not to enter into any agreement or commitment with any person the effect of which would be inconsistent with or violative of the provisions and agreements contained in this Section 3(a).
(b) At Except as the Stockholder is otherwise obligated under the First Purchase Agreement and the Second Purchase Agreement (subject to the Waiver, dated as of the date hereof, among the Stockholder, [UHC/VHA] and the Company), 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 of its Subsidiaries or any other Takeover Acquisition Proposal or (ii) any amendment of the Company's ’s certificate of incorporation or by-laws bylaws or other proposal or transaction involving the Company or any of its subsidiariesSubsidiaries, 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 AgreementAgreement or change in any manner the voting rights of any class of capital stock of the Company. The Stockholder further agrees not to commit or agree to take any action inconsistent with the foregoing.
(c) The Stockholder hereby appoints Xxxx Xxxxxxx and Xxxx Xxxx, and each of them individually, as the Stockholder’s proxy and attorney-in-fact, with full power of substitution and resubstitution, solely to vote or act by written consent prior to the termination of this Agreement with respect the Subject Shares in accordance with Section 3(a). This proxy is given to secure the performance of the duties of the Stockholder under this Agreement. The Stockholder shall promptly cause a copy of this Agreement to be deposited with the Company at its principal place of business. The Stockholder shall take such further action or execute such other instruments as may be reasonably necessary to effectuate the intent of this proxy. The proxy and power of attorney granted pursuant to this Section 3(c) by the Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by the Stockholder inconsistent with the proxy hereby granted. The power of attorney granted by the Stockholder herein is a durable power of attorney and shall survive the dissolution or bankruptcy of the Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement. The Stockholder represents that any proxies heretofore given in respect of the Stockholder’s Subject Shares are not irrevocable and that any such proxies are hereby revoked.
(d) Except as provided in Sections 3(a) and 3(c), the Stockholder agrees not to to, directly or indirectly, (i) sell, transfer, tender, pledge, encumber, assign or otherwise dispose ofof (collectively, a “Transfer”) or enter into any contractagreement, option or other arrangement (including any profit sharing arrangement) with respect to the saleto, transferor consent to, pledge, assignment or other disposition a Transfer of, any or all of the Subject Shares to any person other than Purchaser or Purchaser's designee person, that is inconsistent with its obligations under this Agreement, or (ii) grant any proxies, deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, in connection, directly or indirectly, each case that is inconsistent with any Takeover Proposalthis Agreement.
(de) The Stockholder hereby represents that it is not now engaged in discussions or negotiations with any party other than Parent with respect to any Acquisition Proposal. The Stockholder shall not, nor shall the Stockholder permit authorize any investment banker, consultant, attorney or other adviser advisor or representative of the Stockholder to, directly or indirectly (i) directly or indirectly solicit, initiate or encourage knowingly encourage, induce or facilitate the making, submission ofor announcement of any Acquisition Proposal, (ii) furnish any Takeover information (including non-public information) regarding the Company to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iiiiv) enter into any agreement Contract contemplating or providing for any Acquisition Transaction; provided, however, that this Section 3(e) shall not prohibit Stockholder from furnishing any information (including non-public information) regarding the Company to, or entering into discussions or negotiations with, any Person at any such time as the Company is engaging in such activities with respect to such Person in compliance with the terms and conditions of the Merger Agreement. Any such furnishing of information, discussions or approve or recommend any Takeover Proposalnegotiations shall be conducted in accordance with Section 4.3 of the Merger Agreement.
(ef) So long as At the Merger Agreement has not been terminatedrequest of Parent, the Stockholder shall tender pursuant use all commercially reasonable efforts to the Offertake, or cause to be taken, all actions, and not withdrawto do, or cause to be done, and to assist and cooperate with Parent in doing, all things reasonably necessary, proper or advisable to carry out the intent and purposes of the Subject Sharesthis Agreement.
Appears in 1 contract
Covenants of the Stockholder. The From and after the date hereof ---------------------------- through and including the termination of this Agreement, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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 Acquisition Proposal or (ii) any amendment of the Company's certificate articles of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder hereby agrees that, except as contemplated by this Agreement and the Merger Agreement, the Stockholder shall not to (i) sell, transfer, pledge, assign or otherwise dispose of, of (including by gift) or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of (collectively, "Transfer"), or consent to or permit any Transfer of, any or all of the -------- Subject Shares to or any person other than Purchaser or Purchaser's designee interest therein or (ii) enter into grant any voting arrangement, whether by proxy, voting agreement power-of-attorney or otherwise, other authorization in connection, directly or indirectly, with respect to the Subject Shares. Nothing in this Agreement shall prevent the conversion of the Subject Shares into other property in accordance with a statutory merger or share exchange or restrict in any Takeover Proposalmanner the Stockholder's right to transfer or alienate such property.
(d) The Stockholder acknowledges that it is bound by the provisions of Section 7.1 of the Merger Agreement and shall not, nor shall the Stockholder permit any investment banker, attorney or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, of any Takeover Acquisition Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Acquisition Proposal, or (iii) enter into any agreement with respect unless and solely to or approve or recommend any Takeover Proposalthe extent expressly permitted under Section 7.1 of the Merger Agreement.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall hereby agrees to validly tender pursuant to and in accordance with the terms of the Offer, and not withdrawas soon as practicable after commencement but in no event later than the then scheduled expiration date of the Offer, all of the Subject Shares by physical delivery of the certificates therefor (if such Subject Shares are certificated in the name of Stockholder), and not to withdraw such Subject Shares, except following a termination of the Offer pursuant to its terms. If such Subject Shares are currently held in the name of a broker or other nominee, Stockholder shall instruct the broker or nominee to deliver the securities by a book-entry transfer or other customary electronic means for delivery of securities in connection with a tender offer. Stockholder hereby authorizes Parent and Merger Sub to publish and disclose in the Offer Documents and, if approval of the Company's stockholders is required under applicable law, the Proxy Statement (including all documents and schedules filed with the SEC) Stockholder's identity and ownership of the Subject Shares and the nature of Stockholder's commitments, arrangements and understandings under this Agreement.
(f) Grant of Irrevocable Proxy;
Appears in 1 contract
Covenants of the Stockholder. The From and after the date hereof through and including the date of termination of this Agreement pursuant to Section 7, the Stockholder agrees that so long as followsthe Merger Agreement has not been terminated:
(a) The Stockholder shall validly tender (or cause the record owner of such shares to validly tender) pursuant to and in accordance with the terms of the Offer, and not withdraw, not later than the tenth business day after commencement of the Offer pursuant to Section 1.1 of the Merger Agreement and Rule 14d-2 under the Exchange Act, the number of shares of Common Stock set forth opposite the Stockholder's name on the signature page hereof (the "Existing Shares," and together with any shares of Common Stock acquired by the Stockholder in any capacity after the date hereof and prior to the termination of this Agreement by means of purchase, dividend, distribution, recapitalization, exercise of options or other rights to acquire Common Stock or in any other way, the "Securities"), all of which are Beneficially Owned by the Stockholder. The Stockholder acknowledges and agrees that Parent's and Sub's obligation to accept for payment and pay for the Securities in the Offer, including the Securities Beneficially Owned by the Stockholder, is subject to the terms and conditions of the Offer. The Stockholder authorizes Parent and Sub to publish and disclose in the Offer Documents and, if approval of the Company's stockholders is required under applicable law, the Company Proxy Statement (including all documents and schedules filed with the SEC) its identity and ownership of the Securities and the nature of its commitments, arrangements and understandings under this Agreement.
(b) At any meeting of stockholders of the Company called to vote upon the Merger and or 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 or the Merger Agreement is sought, the Stockholder shall vote (or cause to be voted) all Securities then held of record or Beneficially Owned by the Subject Shares Stockholder in favor of (i) 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 AgreementAgreement and (ii) any other matter that could reasonably be expected to facilitate the Merger.
(bc) 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, the Stockholder shall vote (or cause to be voted) all Securities then held of record or Beneficially Owned by the Subject Shares Stockholder against (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal proposal, transaction, action or transaction agreement involving the Company or any of its subsidiariessubsidiaries (including, without limitation, any change in the majority of the members of the Board of Directors of the Company or any material change in the Company's capital or corporate structure or business), which amendment or other proposal proposal, transaction, action or transaction agreement would in any manner (A) impede, frustrate, prevent or nullify the Merger, this Agreement or the Merger Agreement or any of the other transactions contemplated by hereby or thereby, (B) result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger AgreementAgreement or (C) result in any of the conditions set forth in Exhibit A of the Merger Agreement or set forth in Article VII of the Merger Agreement not being fulfilled.
(cd) The Stockholder agrees not to (i) sell, transfer, gift, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, gift, pledge, assignment or other disposition of, the Subject Shares Securities or any interest therein to any person other than Purchaser Sub or PurchaserSub's designee or designee, (ii) grant any proxy, power-of-attorney or other authorization in or with respect to the Securities, (iii) deposit the Securities into a voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwiseotherwise with respect to the Securities or (iv) take any other action that would in any way restrict, in connection, directly limit or indirectly, interfere with any Takeover Proposalthe performance of the Stockholder's obligations hereunder or the transactions contemplated by this Agreement or the Merger Agreement.
(de) The Stockholder shall not, nor shall the Stockholder permit any of its Affiliates, representatives or agents, including, without limitation, any investment banker, attorney or other adviser or representative of the Stockholder toand, if the Stockholder is a corporation, partnership, trust or other entity, any officer, director, partner, trustee, beneficiary or employee of the Stockholder, to (i) directly or indirectly solicit, initiate initiate, encourage or encourage facilitate the submission making of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Takeover ProposalProposal or (ii) participate in any way in discussions or negotiations regarding, or (iii) enter into furnish or disclose to any agreement Person any information with respect to, or take any other action to or approve or recommend cooperate in any way with respect to, any Takeover Proposal.
(ef) So long as the Merger Agreement has not been terminated, If the Stockholder shall breach the obligation to tender pursuant the Securities described in Section 2(a) above, Sub shall have the option (the "Purchase Option") to purchase such Securities immediately following the closing of the Offer at the price per share paid in the Offer. In the event Sub wishes to exercise the Purchase Option, Sub shall send a written notice (the "Notice") to the Offer, Stockholder identifying the place and date (not withdraw, all less than one nor more than ten business days from the date of the Subject Shares.Notice) for the closing of such purchase. At the closing, (i) against delivery of the Securities, free and clear of all liens, claims, charges and encumbrances of any kind or nature whatsoever, Parent shall cause Sub to make payment to the Stockholder of the aggregate price for the Securities by wire transfer of immediately available
Appears in 1 contract
Covenants of the Stockholder. The From and after the date hereof through and including the Option Expiration Date, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser Sub or PurchaserSub's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.or
Appears in 1 contract
Covenants of the Stockholder. The From and after the date hereof and until the termination of this Agreement pursuant to Section 7, the Stockholder covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger and Agreement, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement, or at any adjournment thereof or postponement thereof, or in any other circumstances upon which a vote, consent consent, adoption or other approval (including by written consent solicitation) with respect to the Merger and Agreement, the Merger or any of the other transactions contemplated by the Merger Agreement is sought, the Stockholder shall vote (or cause to be voted) all of the Subject Shares (owned of record or beneficially) in favor of the Mergerof, and shall consent in writing to (or cause to be consented in writing to), the approval adoption of the Merger Agreement and the approval of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company or at any adjournment or postponement thereof or in any other circumstances upon which the Stockholder's a vote, consent consent, adoption or other approval (including by written consent solicitation) is sought, the Stockholder shall vote (or cause to be voted) all the Subject Shares against (owned of record or beneficially) against, and shall not consent in writing to (and shall cause not to be consented in writing to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement Takeover Proposal or merger (other than the Merger Agreement transaction or occurrence that if proposed and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by offered to the Company or its stockholders (or any other of them) would constitute a Takeover Proposal (collectively, "ALTERNATIVE TRANSACTIONS") or (ii) any amendment of the Company's certificate Certificate of incorporation Incorporation or byBy-laws or other proposal proposal, action or transaction involving the Company or any of its subsidiariessubsidiaries or any of its stockholders, which amendment or other proposal proposal, action or transaction would in any manner impede, frustrate, could reasonably be expected to prevent or nullify materially impede or delay the Mergerconsummation of the Offer, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or the consummation of the transactions contemplated by this Agreement, or change in any manner the voting rights of the Company Common Stock (collectively, "FRUSTRATING TRANSACTIONS").
(c1) The Stockholder shall tender all the Subject Shares pursuant to the Offer. Such tender shall be made promptly, and in any event no later than the fifth business day following commencement of the Offer. The Stockholder shall not withdraw any Subject Shares tendered pursuant to the Offer prior to the termination of the Merger Agreement. The obligation of the Stockholder to tender and not withdraw the Subject Shares is conditioned only upon lawful commencement of the Offer and otherwise is unconditioned. The Stockholder acknowledges and agrees that Rexam's obligation to accept for payment the Subject Shares in the Offer, including any Subject Shares tendered by the Stockholder, is subject to the terms and conditions of the Offer.
(2) Other than pursuant to this Agreement, the Stockholder shall not to (i) sell, transfer, pledge, assign or otherwise dispose ofof (including by gift) (collectively, "TRANSFER") or enter into any contractContract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, or the creation or offer of any derivative security in respect of, any Subject Shares Shares, to or with any person other than Purchaser or Purchaser's designee pursuant to the Offer and the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares, and shall not commit or agree to take any of the foregoing actions. The Stockholder shall not, nor shall the Stockholder permit any entity under the Stockholder's control to, deposit any Subject Shares in connection, directly or indirectly, with any Takeover Proposala voting trust.
(d) The Stockholder shall not, nor shall the Stockholder permit any of its subsidiaries to, nor shall it authorize or permit any director, officer or employee of the Stockholder or any of its subsidiaries or any investment banker, attorney attorney, accountant or other adviser advisor or representative of the Stockholder or any of its subsidiaries to, directly or indirectly, (i) directly or indirectly solicit, initiate or encourage the submission ofencourage, or take any other action to facilitate, any Takeover Proposal or Frustrating Transaction, (ii) directly enter into any agreement with respect to any Takeover Proposal or indirectly Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take otherwise cooperate in any other action to facilitate any inquiries or the making of any proposal that constitutesway with, or may reasonably be expected to lead assist or participate in any effort or attempt by any person with respect to, any Takeover ProposalProposal or Frustrating Transaction.
(i) The Stockholder shall use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement and the Merger Agreement. The Stockholder shall not commit or agree to take any action inconsistent with the transactions contemplated by this Agreement or the transactions contemplated by the Merger Agreement.
(iiiii) enter into The Stockholder shall not, nor shall the Stockholder permit any agreement of its subsidiaries to, nor shall it authorize or permit any director, officer or employee of the Stockholder or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Stockholder or any of its subsidiaries to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Offer, the Merger or approve any of the other transactions contemplated by the Merger Agreement or recommend any Takeover Proposalof the transactions contemplated by this Agreement without prior consultation with Rexam, except as may be required by applicable law.
(ef) So long as The Stockholder hereby waives any appraisal rights with respect to, or rights to dissent from, the Merger that the Stockholder may have.
(g) (i) (A) If the Merger Agreement has not been terminatedis terminated under circumstances in which Rexam is or may become entitled to receive the Termination Fee and an Alternative Transaction is consummated within six months after the termination of this Agreement, then the Stockholder shall tender pursuant pay to Rexam, upon the Offertransfer of any Original Shares in connection with that Alternative Transaction, and not withdraw, an amount equal to all of the Subject Sharescash profit (determined in accordance with clause (B) below) associated with the consummation of such Alternative Transaction that is consummated within six months after the termination of this Agreement.
Appears in 1 contract
Samples: Stockholders Agreement (Rexam Acquisition Subsidiary Inc)
Covenants of the Stockholder. The Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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 stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate Articles of incorporation Incorporation or byBy-laws or other proposal or transaction involving the Company or any of its subsidiariesaffiliates, 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.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares or Subject Warrants (or any option or warrant to purchase Shares or Warrants, except for any sale or transfer to the Company) to any person other than Purchaser Sub or PurchaserSub's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject SharesShares and Subject Warrants.
(f) The Stockholder shall deliver the Willxxxx Xxxes (as defined in the Merger Agreement) upon the purchase of the Shares by Sub pursuant to the Offer or at the Effective Time (as defined in the Merger Agreement), whichever is earlier, and shall cancel the Willxxxx Notes upon payment by Sub by wire transfer of immediately available funds to an account specified in writing by the Stockholder of the principal amount and any accrued interest on the Willxxxx Xxxes.
Appears in 1 contract
Covenants of the Stockholder. The Stockholder covenants and agrees as follows:
(a) Immediately after receiving the request of the Company and/or Parent, following the effectiveness of the Form S-4, the Stockholder shall consent to the adoption of the Merger Agreement by executing and delivering to the Company and Parent the stockholder consent in the form attached as Exhibit B hereto and the Stockholder shall not thereafter revoke, withdraw or repudiate such executed consent. Such written consent shall be coupled with an interest and, following receipt of sufficient consents to satisfy the condition set forth in Section 6.1(a) of the Merger Agreement, shall be irrevocable, except as set forth in Section 5 below.
(b) At any meeting of the stockholders of the Company Company, or at any postponement or adjournment thereof, called to seek the affirmative vote upon of the Merger and holders of the outstanding Shares to adopt 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 Agreement, the Merger or the other transactions contemplated by the Merger Agreement is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 Agreementforegoing.
(bc) Any vote required to be cast or consent required to be executed pursuant to this Section 4 shall be cast (or consent shall be given) by the Stockholder in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining whether a quorum is present.
(d) At any meeting of stockholders of the Company or at any postponement or adjournment thereof or in any other circumstances upon which the Stockholder's ’s vote, consent or other approval (including by written consent) is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares against and withhold consent with respect to (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, tender offer, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or Company, (ii) any amendment Alternative Transaction, and (iii) any other action, agreement or transaction that would reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would contained in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by Stockholder contained in this Agreement or that would impede, interfere or be inconsistent with, delay, postpone, discourage, frustrate the Merger purposes of, or adversely affect the timely consummation the Merger. The Stockholder shall not commit or agree to take any action inconsistent with the foregoing that would be effective prior to any termination of this Agreement.
(ce) The Prior to the time the Company Stockholder agrees Approval is received, other than this Agreement, the Stockholder shall not to (i) sell, transfer, pledgeexchange, assign assign, or otherwise tender or dispose ofof (including by gift) (collectively, “Transfer”), or enter into any contract, option or other arrangement (including any profit sharing arrangement) Contract with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, the any Subject Shares to any person Person or any rights to acquire any securities or equity interests of the Company to any Person other than Purchaser or Purchaser's designee pursuant to the Merger Agreement or (ii) grant any proxies (other than any proxy to adopt the Merger Agreement at, or adjourn, the Company Stockholders Meeting or any proxy granted (that is unrelated to the Merger Agreement and the transactions contemplated thereby) in connection with the taking of any action that would not be reasonably likely to materially delay or prevent the consummation of the transactions contemplated by the Merger Agreement) or enter into any voting trust or other similar agreement or arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares or any rights to acquire any securities or equity interests of the Company and shall not commit or agree to take any of the foregoing actions. Notwithstanding anything to the contrary set forth herein, the Stockholder may Transfer the Subject Shares to any Person so long as (i) such Person agrees in connectionwriting to be bound by the terms of this Agreement with respect to such Subject Shares by executing the joinder agreement attached hereto as Exhibit C and (ii) such Transfer, together with any other Transfers by such Stockholder, would not subject to the Transaction to any additional FERC or other regulatory approval requirements. Notwithstanding any such Transfers, and for the avoidance of doubt, the Stockholder shall continue to be bound by the covenants and agreements set forth in Section 4(i) for so long as such Stockholder owns Verso Junior Notes.
(f) The Stockholder hereby (i) waives, and agrees not to exercise or assert, any appraisal rights under Section 262 of the DGCL in connection with the Merger and (ii) agrees not to commence or join in, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Company or any of their respective successors or directors (A) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (B) alleging a breach of any fiduciary duty of any Person in connection with the evaluation, negotiation or entry into the Merger Agreement.
(g) The Stockholder hereby agrees that, in the event (i) of any stock dividend, stock split, recapitalization, reclassification, combination or exchange of shares of capital stock of the Company of, or affecting, the Subject Shares, (ii) that the Stockholder purchases or otherwise acquires beneficial ownership of or an interest in any shares of capital stock of the Company after the execution of this Agreement (including by conversion) or (iii) that the Stockholder voluntarily acquires the right to vote or share in the voting of any shares of capital stock of the Company other than the Subject Shares (collectively, the “New Shares”), the Stockholder shall deliver promptly to Parent written notice of its acquisition of New Shares which notice shall state the number of New Shares so acquired. The Stockholder agrees that any New Shares acquired or purchased by the Stockholder shall be subject to the terms of this Agreement, including the representations and warranties set forth in Section 1, and shall constitute Subject Shares to the same extent as if those New Shares were owned by the Stockholder on the date of this Agreement.
(h) The Stockholder agrees that it will not, and will not authorize, permit or cause its officers, directors, employees or Representatives to, directly or indirectly, take any action to solicit, encourage, initiate or engage in discussions or negotiations with, or provide any information to or enter into any agreement with any Takeover ProposalPerson or facilitate, any inquiries or submission of proposals or offers from any person (other than Parent, Merger Sub and/or their respective Affiliates) concerning any Alternative Transaction (other than the Merger), or resolve, agree or propose to take any such action. The Stockholder shall, and shall, if applicable, cause each of its controlled Affiliates to cease and cause to be terminated any existing activities, discussions or negotiations by the Stockholder, any controlled Affiliate of the Stockholder or any Representative of the Stockholder or its controlled Affiliates with any Persons (other than Parent, Merger Sub and the Company) conducted heretofore with respect to any Alternative Transaction; provided, that the foregoing restriction shall not apply to any Affiliate of the Stockholder party hereto that is primarily engaged in the business of providing investment banking and/or financial advisory services to third parties that (I) has not been provided with material non-public information regarding the transactions contemplated by the Merger Agreement or (II) is not acting on behalf of a Person that has been provided with any such material non-public information.
(d) Notwithstanding the foregoing, the Stockholder may respond to any unsolicited proposal regarding an Alternative Transaction by indicating that the Company is subject to a definitive agreement regarding a transaction and is unable to provide any information related to the Company or any of its Affiliates or entertain any proposals or offers or engage in any negotiations or discussions concerning an Alternative Transaction for as long as this Agreement remains in effect. The Stockholder shall not, nor shall the Stockholder permit any investment banker, attorney or other adviser or representative promptly notify Parent (but in no case later than two (2) Business Days after receipt) of the Stockholder toreceipt of any proposal for any Alternative Transaction or any inquiry, (i) directly offer or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any request for information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead toresult in, an Alternative Transaction, or any discussions or negotiations sought to be initiated or continued with the Stockholder, any Takeover Proposalof its Subsidiaries or any of its Representatives concerning an Alternative Transaction, indicating, in each case, the identity of the Person or group making such Alternative Transaction proposal, inquiry, offer or request for information and a copy of any Alternative Transaction proposal, inquiry, offer or request made in writing and the material terms and conditions of an Alternative Transaction proposal, inquiry, offer or request not made in writing, and thereafter shall keep Parent informed in reasonable detail, on a prompt basis (and, in any event, within two (2) Business Days of the Stockholder’s or its Representatives’ knowledge of any such event), of any material developments or modifications to the terms of any such Alternative Transaction proposal, inquiry, offer or request (including copies of any documents) and the status thereof. The Stockholder shall not issue any press release or make any other public statement with respect to the Merger.
(i) The Stockholder agrees that it will (i) tender any and all Verso Junior Notes owned by the Stockholder and/or any of its controlled Affiliates in the Exchange Offers,
(ii) provide its consent to the transactions contemplated by the Consent Solicitations and (iii) enter into use its, his or her reasonable best efforts to take, or cause to be taken, any agreement with respect and all actions and will do, or cause to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdrawbe done, all things necessary and advisable, in each case as requested by Xxxxxx, in furtherance of the Subject Sharesconsummation of the Exchange Offers and Consent Solicitations.
Appears in 1 contract
Samples: Merger Agreement
Covenants of the Stockholder. The Stockholder Until the termination of this Agreement in accordance with Section 5, the Stockholder, in its capacity as such, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger and the Merger Agreement eMerge ("eMerger Meeting") or at any adjournment adjournment, postponement or continuation thereof or in any other circumstances occurring prior to the eMerge Meeting upon which a vote, consent or other approval (including by written consent) with respect to the Merger and the Merger Agreement is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares (and each class thereof) (i) in favor of the approval of each matter recommended by the Board of Directors of eMerge to be undertaken in connection with the Merger, including, if required, the approval and adoption of the Merger Agreement and the approval transactions contemplated hereby and any matter that could reasonably be expected to facilitate the Merger; (ii) in favor of any alternative structure as may be agreed upon by the Company, Shield, Merger Sub and eMerge to reflect the acquisition by Shield of control of eMerge, provided that such alternative structure is on terms in the aggregate no less favorable to the Stockholder than the terms thereof and each of the other transactions contemplated by the Merger Agreement.
; and (biii) At any meeting of stockholders except with the written consent of the Company or at Company, against any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is soughtTakeover Proposal, the Stockholder shall vote (consummation of any Superior Proposal or cause to be voted) the Subject Shares against (i) any merger action, proposal, or agreement or merger transaction (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or the transaction contemplated thereby) that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of eMerge under the Merger Agreement which could result in any of the conditions to eMerge's obligations under the Merger Agreement not being fulfilled or which could be inconsistent with the Merger or any other transactions transaction contemplated by the Merger Agreement.
(c) The . Any such vote shall be cast or consent shall be given in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the results of such vote or consent. Such Stockholder agrees not to enter into any agreement or commitment with any person the effect of which would be inconsistent with or violative of the provisions and agreements contained in this Section 3(a). This Agreement is intended to bind the Stockholder as a stockholder of eMerge only with respect to the specific matters set forth herein.
(b) Such Stockholder agrees not to, directly or indirectly, (i) sell, transfer, tender, pledge, encumber, assign or otherwise dispose ofof (collectively, a "Transfer") or enter into any contractagreement, option or other arrangement (including any profit sharing arrangement) with respect to, or consent to the sale, transfer, pledge, assignment or other disposition a Transfer of, or convert or agree to convert, any or all of the Subject Shares to any person person, other than Purchaser or Purchaser's designee in accordance with the Merger Agreement, or (ii) grant any proxies (other than eMerge proxy card in connection with the eMerge Meeting if and to the extent such proxy is consistent with the Stockholder's obligations under Section 3(a) hereof), deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, other than pursuant to this Agreement. Such Stockholder further agrees not to commit or agree to take any of the foregoing actions or take any action that would have the effect of preventing, impeding, interfering with or adversely affecting its ability to perform its obligations under this Agreement.
(c) The Stockholder shall not, nor shall such Stockholder permit any controlled affiliate of such Stockholder to, nor shall such Stockholder act in connectionconcert with or permit any controlled affiliate to act in concert with any person to make, or in any manner participate in, directly or indirectly, a "solicitation" (as such term is used in the rules of the Securities and Exchange Commission ("SEC")) of proxies or powers of attorney or similar rights to vote, or seek to advise or influence any person with respect to the voting of, any shares of Stock intended to facilitate any Takeover Proposal or to cause stockholders of eMerge not to vote to approve and adopt the matters recommended by the eMerge Board of Directors in connection with the Merger. Such Stockholder shall not, and shall direct any investment banker, attorney, agent or other adviser or representative of such Stockholder not to, directly or indirectly, through any officer, director, agent or otherwise, enter into, solicit, initiate, conduct or continue any discussions or negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or provide any information to, any person, other the Company, relating to any Takeover Proposal. Such Stockholder hereby represents that, as of the date hereof, it is not engaged in discussions or negotiations with any party other than the Company with respect to any Takeover Proposal.
(d) The Stockholder shall not, nor shall agrees that any shares of Stock of eMerge that the Stockholder permit any investment banker, attorney purchases or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, which the Stockholder shall tender pursuant otherwise acquires beneficial ownership after the date of this Agreement and prior to the OfferTermination Date ("New Shares"), and not withdrawany and all other shares or securities of eMerge issued, all exchanged, issuable or exchangeable in respect of New Shares shall be subject to the Subject Sharesterms and conditions of this Agreement to the same extent as if they constituted shares of Stock.
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Samples: Voting and Lock Up Agreement (Safeguard Scientifics Inc)
Covenants of the Stockholder. The From and after the date hereof ---------------------------- through and including the termination of this Agreement, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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 Acquisition Proposal or (ii) any amendment of the Company's certificate articles of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder hereby agrees that, except as contemplated by this Agreement and the Merger Agreement, the Stockholder shall not to (i) sell, transfer, pledge, assign or otherwise dispose of, of (including by gift) or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of (collectively, "Transfer"), or consent -------- to or permit any Transfer of, any or all of the Subject Shares to or any person other than Purchaser or Purchaser's designee interest therein or (ii) enter into grant any voting arrangement, whether by proxy, voting agreement power-of-attorney or otherwise, other authorization in connection, directly or indirectly, with respect to the Subject Shares. Nothing in this Agreement shall prevent the conversion of the Subject Shares into other property in accordance with a statutory merger or share exchange or restrict in any Takeover Proposalmanner the Stockholder's right to transfer or alienate such property.
(d) The Stockholder acknowledges that it is bound by the provisions of Section 7.1 of the Merger Agreement and shall not, nor shall the Stockholder permit any investment banker, attorney or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, of any Takeover Acquisition Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Acquisition Proposal, or (iii) enter into any agreement with respect unless and solely to or approve or recommend any Takeover Proposalthe extent expressly permitted under Section 7.1 of the Merger Agreement.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall hereby agrees to validly tender pursuant to and in accordance with the terms of the Offer, and not withdrawas soon as practicable after commencement but in no event later than the then scheduled expiration date of the Offer, all of the Subject Shares by physical delivery of the certificates therefor (if such Subject Shares are certificated in the name of Stockholder), and not to withdraw such Subject Shares, except following a termination of the Offer pursuant to its terms. If such Subject Shares are currently held in the name of a broker or other nominee, Stockholder shall instruct the broker or nominee to deliver the securities by a book-entry transfer or other customary electronic means for delivery of securities in connection with a tender offer. Stockholder hereby authorizes Parent and Merger Sub to publish and disclose in the Offer Documents and, if approval of the Company's stockholders is required under applicable law, the Proxy Statement (including all documents and schedules filed with the SEC) Stockholder's identity and ownership of the Subject Shares and the nature of Stockholder's commitments, arrangements and understandings under this Agreement.
(f) Grant of Irrevocable Proxy;
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Covenants of the Stockholder. The From and after the date hereof ---------------------------- through and including the termination of this Agreement, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares (over which the Stockholder has sole voting power) 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 Acquisition Proposal or (ii) any amendment of the Company's certificate articles of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder hereby agrees that, except as contemplated by this Agreement and the Merger Agreement, the Stockholder shall not to (i) sell, transfer, pledge, assign or otherwise dispose of, of (including by gift) or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of (collectively, "Transfer"), or consent to or permit any Transfer -------- of, any or all of the Subject Shares to or any person other than Purchaser or Purchaser's designee interest therein or (ii) enter into grant any voting arrangement, whether by proxy, voting agreement power-of-attorney or otherwise, other authorization in connection, directly or indirectly, with respect to the Subject Shares. Nothing in this Agreement shall prevent the conversion of the Subject Shares into other property in accordance with a statutory merger or share exchange or restrict in any Takeover Proposalmanner the Stockholder's right to transfer or alienate such property.
(d) The Stockholder acknowledges that it is bound by the provisions of Section 7.1 of the Merger Agreement and shall not, nor shall the Stockholder permit any investment banker, attorney or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, of any Takeover Acquisition Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Acquisition Proposal, or (iii) enter into any agreement with respect unless and solely to or approve or recommend any Takeover Proposalthe extent expressly permitted under Section 7.1 of the Merger Agreement.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall hereby agrees to validly tender pursuant to and in accordance with the terms of the Offer, and not withdrawas soon as practicable after commencement but in no event later than the then scheduled expiration date of the Offer, all of the Subject Shares by physical delivery of the certificates therefor (if such Subject Shares are certificated in the name of Stockholder), and not to withdraw such Subject Shares, except following a termination of the Offer pursuant to its terms. If such Subject Shares are currently held in the name of a broker or other nominee, Stockholder shall instruct the broker or nominee to deliver the securities by a book-entry transfer or other customary electronic means for delivery of securities in connection with a tender offer. Stockholder hereby authorizes Parent and Merger Sub to publish and disclose in the Offer Documents and, if approval of the Company's stockholders is required under applicable law, the Proxy Statement (including all documents and schedules filed with the SEC) Stockholder's identity and ownership of the Subject Shares and the nature of Stockholder's commitments, arrangements and understandings under this Agreement.
(f) Grant of Irrevocable Proxy;
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Covenants of the Stockholder. The Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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 stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate Articles of incorporation Incorporation or byBy-laws or other proposal or transaction involving the Company or any of its subsidiariesaffiliates, 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.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares or Subject Warrants (or any option or warrant to purchase Shares or Warrants, except for any sale or transfer to the Company) to any person other than Purchaser Sub or PurchaserSub's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject SharesShares and Subject Warrants, except that the Stockholder shall not be obligated to tender the Subject Shares pursuant to the Offer until September 30, 1999 or any time thereafter (so long as the Offer has not expired or been withdrawn by Sub).
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Covenants of the Stockholder. The Until the termination of this Agreement in accordance with Section 11, the Stockholder agrees as follows:
(a) At Subject to Section 5, at any meeting of stockholders 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 (including by written consent) with respect to the Merger and the Merger Agreement is soughtsought from the Company's stockholders in their capacities as such, the Stockholder shall shall, including by executing a written consent if requested by Parent, vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval of the Merger Agreement and the adoption and approval by the Company of the terms thereof and each of the other transactions contemplated by the Merger Agreement.
(b) 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, the The Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), consent to any Transfer of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, any or all of the Subject Shares (or any interest therein) to any person other than Purchaser or Purchaser's designee pursuant to the terms of the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connectionconnection with, directly or indirectly, with any Takeover Proposal, and agrees not to commit or agree to take any of the foregoing actions; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Stockholder may, without the consent of Parent or any other person, transfer any or all of the Subject Shares (or any interest therein) to one or more members of the Stockholder's family, any trust for the benefit of the Stockholder or one or more members of the Stockholder's family or any entity controlled by the Stockholder so long as the transferee of such Subject Shares (or such interest therein) agrees to be bound by the applicable provisions of this Agreement.
(dc) The Stockholder shall not, nor shall the Stockholder permit he instruct any agent or any investment banker, attorney or other adviser or representative of the Stockholder to, directly or indirectly, (i) directly or indirectly solicit, initiate or knowingly encourage the submission to the Company of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations with any person (other than Parent and its affiliates, agents and representatives) regarding, or furnish to any such person any non-public information with respect to, or take any other action intended to facilitate any inquiries or the making of any inquiry or proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(ed) So long as If, at the time the Merger Agreement has not been terminatedis submitted for approval to the stockholders of the Company, the Stockholder is an "affiliate" of the Company for purposes of Rule 145 under the Securities Act or for purposes of qualifying the Merger for pooling of interests accounting treatment under Opinion 16 of the Accounting Principles Board and applicable SEC rules and regulations, the Stockholder shall tender pursuant deliver to Parent on or prior to the Offer, and not withdraw, all of Closing Date a written agreement substantially in the Subject Sharesform attached as Exhibit A to the Merger Agreement.
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Covenants of the Stockholder. The Until the termination of this Agreement in accordance with Section 6, the Stockholder agrees as follows:
(a) At any meeting of stockholders of the Company ProLogis called to vote upon the Merger and the Merger Agreement and the transactions contemplated thereby (as defined in the Merger Agreement) or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger and the Merger Agreement is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval of the Merger Agreement such proposals and the approval of the terms thereof and each any of the other transactions contemplated by the Merger Agreement.
(b) At any meeting of the stockholders of the Company ProLogis or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the CompanyProLogis's certificate declaration of incorporation trust or by-laws bylaws or other proposal or transaction involving the Company ProLogis 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. The Stockholder further agrees not to commit or agree to take any action inconsistent with the foregoing.
(c) The Except as provided in the immediately succeeding sentence of this Section 3(c), the Stockholder agrees not to (i) to, directly or indirectly, sell, transfer, pledge, assign or otherwise dispose ofof (including by gift) (collectively, the "Transfer"), or enter into any contract, option or other arrangement (including any profit sharing arrangementagreement) with respect to the saleTransfer of the Subject Shares or its beneficial or record ownership interest in the Record Holder to any person and agrees not to commit or agree to take any of the foregoing actions (provided that the foregoing shall not preclude a pledge of the Subject Shares as security with respect to a bona fide loan from a financial institution). Notwithstanding the foregoing, transfer, pledge, assignment or other disposition of, the Stockholder shall have the right to Transfer the Subject Shares to any person other than Purchaser or Purchaser's designee or (ii) enter into any voting arrangementa transferee provided that, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish as a condition to any person any information with respect tosuch Transfer, or take any other action each such transferee shall execute and deliver to facilitate any inquiries or MIT a counterpart of this Agreement and expressly agree to be bound hereby. Notwithstanding anything in this Agreement to the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminatedcontrary, the Stockholder shall tender pursuant to have no obligations under this Section 3 if the Offer, and not withdraw, all of Merger Agreement is amended or supplemented in any substantive manner without the Subject SharesStockholder's consent.
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Covenants of the Stockholder. The Until the termination of this Agreement in accordance with Section 5, the Stockholder covenants and agrees with Nipro and the Acquisition Corporation as follows:
(a) At any meeting of stockholders As soon as practicable but in no event later than five business days after the commencement 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 soughtOffer, the Stockholder shall vote (will duly tender or cause to be voted) tendered to the Acquisition Corporation all of the Subject Shares. The Stockholder further agrees not to withdraw or caused to be withdrawn any of the Subject Shares in favor prior to the expiration of the MergerOffer, as the approval of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by Offer may be extended from time to time in accordance with the Merger Agreement.
(b) At any meeting of stockholders of the Company or at Stockholders Meeting (including any adjournment thereof or postponement thereof)and in any other circumstances upon circumstance in which the Stockholder's Stockholder is entitled to vote, consent or give any other approval is soughtwith respect to the Merger Agreement, the Stockholder shall will vote (or cause to be voted) all of the Subject Shares in favor of the adoption of the Merger Agreement.
(c) At the Stockholders Meeting (or at any adjournment or postponement thereof) and in any other circumstance in which the Stockholder is entitled to vote, consent or give any other approval, the Stockholder will vote (or cause to be voted) all of the Subject Shares against each of the following :
(i) any merger action or omission that would result in a breach of any representation, warranty, covenant, agreement or merger (other than obligation of HDI under the Merger Agreement and or of the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or Stockholder under this Agreement;
(ii) any Acquisition Proposal, whether or not constituting a Superior Acquisition Proposal;
(iii) any amendment of the Company's to HDI’s certificate of incorporation or by-laws bylaws, including any amendment that would authorize any additional shares or other proposal classes of shares of capital stock or transaction involving change in any manner the Company rights and privileges, including voting rights, of any class of HDI’s capital stock;
(iv) any material change in the present capitalization or dividend policy of HDI;
(v) any material change in the board of directors or senior management of HDI or any of its subsidiaries;
(vi) any material change in HDI’s corporate structure or business activities; or
(vii) any other plan, which amendment transaction, proposal, agreement or other proposal or transaction would in any manner arrangement that could reasonably be expected to impede, frustrateinterfere with, prevent discourage, prevent, delay, nullify or nullify the Merger, postpone the Merger Agreement or any of the other transactions contemplated by the Merger Agreement. The Stockholder, solely in his, her or its capacity as a stockholder of HDI, further agrees not to commit or agree to take any action inconsistent with the foregoing agreements.
(cd) The Stockholder agrees to be present (in person or by proxy) or to cause the holder or holders of record of all of the Subject Shares on the applicable record date (each, a “Record Holder”) to be present (in person or by proxy) at the Stockholders Meeting and all other meetings of the stockholders of HDI called to vote on any matter contemplated by this Agreement so that all of the Subject Shares will be counted for the purpose of determining the presence of a quorum at such meetings, and to vote or cause each Record Holder to vote all of the Subject Shares in the manner required by this Agreement.
(e) AS SECURITY FOR THE PERFORMANCE OF THE OBLIGATIONS OF THE STOCKHOLDER PROVIDED FOR IN THIS AGREEMENT, THE STOCKHOLDER HEREBY GRANTS TO NIPRO AND THE ACQUISITION CORPORATION, ACTING TOGETHER OR SEVERALLY AND WITH FULL POWER OF SUBSTITUTION, AN IRREVOCABLE PROXY TO VOTE THE SUBJECT SHARES AS PROVIDED IN THIS AGREEMENT. THE STOCKHOLDER AGREES THAT THIS PROXY IS COUPLED WITH AN INTEREST AND WILL BE IRREVOCABLE DURING THE TERM OF THIS AGREEMENT. THE STOCKHOLDER WILL TAKE SUCH FURTHER ACTIONS OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE REQUESTED BY NIPRO AND THE ACQUISITION CORPORATION TO EFFECTUATE THE INTENT OF THIS PROXY. THE STOCKHOLDER HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDER WITH RESPECT TO THE SUBJECT SHARES AND AGREES NOT TO GRANT ANY PROXY THAT CONFLICTS OR IS INCONSISTENT WITH THE PROXY GRANTED TO NIPRO AND THE ACQUISITION CORPORATION IN THIS AGREEMENT.
(f) The Stockholder agrees not to (i) sell, transfer, tender pursuant to a tender offer, pledge, encumber, assign or otherwise dispose ofof or hypothecate (including by gift or by contribution or distribution to any trust or similar instrument or to any beneficiaries of the Stockholder) (collectively, “Transfer”), or enter into any contract, option or other arrangement or understanding (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, Transfer of any of the Subject Shares to any person other than Purchaser or Purchaser's designee or pursuant to the terms of this Agreement, (ii) enter into any voting arrangementarrangement or understanding with respect to the Subject Shares, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (iiiii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead tomake the Stockholder’s representations or warranties contained in this Agreement untrue or inaccurate or could reasonably be expected to have the effect of preventing or disabling the Stockholder from performing any of his, any Takeover Proposalher or its obligations under this Agreement. Notwithstanding anything contained herein to the contrary, or (iiithe restrictions contained in this Section 1(f) enter into any agreement will not apply with respect to or approve or recommend any Takeover ProposalTransfer of Subject Shares by the Stockholder pursuant to applicable laws of descent and distribution; provided that any proposed transferee must agree to take such Subject Shares subject to and to be fully bound by the terms of this Agreement applicable to such Subject Shares by executing a joinder to this Agreement in a form reasonably acceptable to Nipro and Acquisition Corporation and delivering such executed joinder to Nipro and the Acquisition Corporation as soon as practicable after such Transfer.
(eg) So long as the Merger Agreement has not been terminated, the The Stockholder shall tender pursuant hereby authorizes and requests HDI and its counsel to the Offer, and not withdraw, notify HDI’s transfer agent that there is a stop transfer order with respect to all of the Subject Shares and that this Agreement places limits on the voting of the Subject Share). The Stockholder agrees with, and covenants to, Nipro and the Acquisition Corporation that the Stockholder will not request that HDI register the Transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of the Subject Shares, unless such Transfer is made in compliance with this Agreement. In the event of a stock dividend or distribution, or any change in the shares of Common Stock by reason of any recapitalization, stock split, combination of shares, exchange of shares or the like, the term “Subject Shares” will be deemed to refer to and include the Subject Shares as well as all such stock dividends and distributions and any shares or other securities into which or for which any or all of the Subject Shares may be changed or exchanged. The Stockholder will be entitled to receive and retain any cash dividend paid by HDI during the term of this Agreement until the Subject Shares are canceled in the Merger.
(h) THE STOCKHOLDER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS WHICH THE STOCKHOLDER MAY HAVE AS TO APPRAISAL, DISSENT OR ANY SIMILAR OR RELATED MATTER WITH RESPECT TO THE MERGER, THE MERGER AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY.
Appears in 1 contract
Covenants of the Stockholder. The From and after the date hereof ---------------------------- through and including the Option Expiration Date, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser Sub or PurchaserSub's designee or (ii/1/ Section 1(b) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The of Xxxxx X. Xxxxxxx'x Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long Agreement reads as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.follows:
Appears in 1 contract
Covenants of the Stockholder. The Stockholder agrees as follows:
(a) The Stockholder shall not, directly or indirectly, (i) sell, transfer (including by operation of law), pledge, assign or otherwise encumber or dispose of, or enter into any agreement, option or other arrangement (including any profit sharing arrangement) or understanding with respect to any of the Securities to any person; provided, that, in the event that the Stockholder is a party, as of the date hereof, to a written plan for trading the Securities in accordance with Rule 10b5-1 under the Exchange Act (a “10b5-1 Plan”), the Stockholder may sell pursuant to such 10b5-1 Plan up to that number of Securities as permitted to be sold under such 10b5-1 Plan, (ii) deposit any Securities into a voting trust or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney, attorney-in-fact, agent or otherwise, with respect to the Securities, except as contemplated by this Agreement, or (iii) take any other action that would in any way make any representation or warranty of the Stockholder herein untrue or incorrect in any material respect. Table of Contents
(b) At any meeting of stockholders of the Company Parent Stockholders called to vote upon the Merger and the Merger Agreement Parent Voting Proposal or at any adjournment adjournment, postponement or recess thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent) is sought with respect to the Merger and the Merger Agreement is soughtParent Voting Proposal, the Stockholder shall vote (or cause to be voted) all of the Subject Shares Securities: (i) in favor of the Merger, the approval of the Merger Agreement and the approval issuance of the Merger Shares in the Merger pursuant to the terms thereof and each of the other transactions contemplated by the Merger Agreement.
, (bii) At against any meeting of stockholders of the Company or at any adjournment thereof or in Parent Acquisition Proposal and (iii) against any other circumstances upon which the Stockholder's voteaction or agreement that would result in a breach of any covenant, consent representation or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 warranty or any other Takeover Proposal obligation or (ii) any amendment agreement of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, Parent under the Merger Agreement or which would result in any of the other transactions contemplated by conditions to the consummation of the Merger Agreementunder the Merger Agreement not being fulfilled.
(c) The Stockholder agrees not shall use commercially reasonable efforts to (i) sell, transfer, pledge, assign or otherwise dispose oftake, or enter into any contractcause to be taken, option all reasonable actions, and to do, or cause to be done, and to assist the other arrangement (including any profit sharing arrangement) with respect parties in doing, all things reasonably necessary, proper or advisable to fulfill the saleStockholder’s obligations under this agreement, transferincluding, pledgewithout limitation, assignment or other disposition ofattending, if applicable, the Subject Shares Parent Stockholder Meeting or any adjournment, postponement or recess thereof (or executing valid and effective proxies to any person other than Purchaser attending participant of a Parent Stockholder Meeting in lieu of attending such Parent Stockholder Meeting or Purchaser's designee any adjournment, postponement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposalrecess thereof).
(d) The Stockholder shall not, nor shall the Stockholder permit not exercise any investment banker, attorney or other adviser or representative rights (including under Section 262 of the Stockholder to, (iDelaware General Corporation Law) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making demand appraisal of any proposal Company Stock that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement arise with respect to or approve or recommend any Takeover Proposalthe Merger.
(e) So long as The Stockholder authorizes and agrees to permit Parent and Merger Sub to publish and disclose in the Merger Proxy Statement and any related filings under the securities laws of the United States or any state thereof the Stockholder’s identity and ownership of Securities and the nature of Stockholder’s commitments, arrangements and understandings under this Agreement has not been terminated, and any other information required by applicable Law. None of the information relating to the Stockholder shall tender pursuant provided by or on behalf of the Stockholder in writing for inclusion in the Proxy Statement will, at the respective times that the Proxy Statement is filed with the SEC or is first mailed to the Offer, and not withdraw, all holders of the Subject SharesParent Common Stock, contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Merger Agreement (Capnia, Inc.)
Covenants of the Stockholder. The Stockholder covenants and agrees as follows:
(a) At any meeting of stockholders of During the Company called to vote upon the Merger and the Merger Agreement or at any adjournment thereof Lock-Up Period, except as provided in this Section 3(a) or in any other circumstances upon which connection with a votePermitted Transfer, consent or other approval with respect to the Merger and the Merger Agreement is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 stockholders of the Company or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, exchange, pledge, assign assign, hypothecate, encumber, or tender or otherwise create any lien on or dispose ofof (including by gift) (collectively, “Transfer”), or enter into any contract, agreement, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Transfer of any Subject Shares or any rights to acquire any person other than Purchaser or Purchaser's designee or Subject Shares, (ii) enter into any swap or other arrangement that Transfers to another, in whole or in part, any of the economic consequences of ownership of any Subject Shares, whether any such transaction is to be settled by delivery of Common Stock, in cash or otherwise, or (iii) grant any proxies or enter into any voting trust or other agreement or arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares, and shall not commit or agree to take any of the foregoing actions. As used in connectionthis Agreement, the term “Transfer,” shall also include any pledge, hypothecation, encumbrance, assignment or other disposition of such security or the record or beneficial ownership thereof (other than beneficial ownership arising solely as a result of an Affiliate of JPMorgan Chase & Co. being deemed to beneficially own OEP or any of its controlled Affiliates), the offer to make a sale, transfer or other disposition, and each agreement, arrangement or understanding whether or not in writing, to effect any of the foregoing. Notwithstanding the foregoing, Stockholder shall be permitted at any time to Transfer all or part of the Subject Shares (1) in response to a tender offer or exchange offer for Common Stock which is made by or on behalf of Parent, (2) in response to a Tender Offer for Common Stock which is made by another Person and is not opposed by the board of directors of Parent within the time the board of directors of Parent is required to advise the shareholders of Parent of its position on such offer or (3) upon the entry by Parent into a definitive agreement with any Person which, if the transactions contemplated thereunder were to be consummated, would result in a Change of Control of Parent.
(b) During the Standstill Period, except as provided in this Section 3(b) or as specifically requested in writing by Parent, none of Stockholder, its controlled Affiliates, OEP, its controlled Affiliates or any of Stockholder’s, its controlled Affiliates’, OEP’s or its controlled Affiliates’ respective representatives acting as advisor to and on behalf of Stockholder, its controlled Affiliates, OEP or its controlled Affiliates, will propose or publicly announce or otherwise disclose an intent to propose or enter into or agree to enter into, singly or with any other person or directly or indirectly, (i) any form of business combination, acquisition or other transaction relating to Parent or any of its subsidiaries, or (ii) any form of restructuring, recapitalization or similar transaction with respect to Parent or any of its subsidiaries, or (iii) any demand, request or proposal to amend, waive or terminate any provision of this Section 3(b). Furthermore, during the Standstill Period, except as provided in this Section 3(b) or as specifically requested in writing by Parent, none of Stockholder, OEP, any of their respective controlled Affiliates or respective representatives of any of the foregoing acting on their behalf will, directly or indirectly, with any Takeover Proposal.
(d1) The Stockholder shall notacquire, nor shall the Stockholder permit any investment bankeror offer, attorney propose or agree to acquire, by tender offer, purchase or otherwise, Voting Securities (except (y) pursuant to a stock dividend, stock split, reclassification, recapitalization or other adviser similar event by Parent or representative (z) as necessary following any dilution of the Total Voting Power beneficially owned by Stockholder tocaused by the primary issuance of securities by Parent to restore (but not increase) such Total Voting Power to the level existing immediately prior to such primary issuance), (i2) directly acquire or indirectly solicitoffer, initiate propose or agree to acquire, assets, indebtedness or businesses of Parent or its subsidiaries, (3) make, or in any way participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the U.S. Securities and Exchange Commission) with respect to any Voting Securities (including by the execution of action by written consent), (4) become an active participant in any contest with respect to the election of directors of Parent, (5) seek to influence any Person with respect to the voting or disposition of any Voting Securities, (6) demand a copy of Parent’s list of stockholders or its other books and records, (7) participate in or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making formation of any proposal partnership, syndicate or other group that constitutesowns or seeks or offers to acquire beneficial ownership of any Voting Securities or assets, indebtedness or may reasonably be expected businesses of Parent or its subsidiaries or that seeks to lead to, affect control of Parent or for the purpose of circumventing any Takeover Proposalprovision of this Agreement, or (iii8) otherwise act, alone or in concert with others (including by providing financing for another person), to seek or to offer to control or influence, in any manner, the management, board of directors or policies of Parent. Notwithstanding the foregoing, the Standstill Period shall terminate (A) enter on the date that is ten (10) Business Days after any Person shall commence and not withdraw a Tender Offer, unless within ten (10) Business Days of the announcement of such Tender Offer Parent shall have publicly recommended that the Tender Offer not be accepted, or (B) upon the entry by Parent into any a definitive agreement with respect any Person which, if the transactions contemplated thereunder were to or approve or recommend any Takeover Proposalbe consummated, would result in a Change of Control of Parent.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 1 contract
Samples: Stockholder Agreement (Om Group Inc)
Covenants of the Stockholder. The Until the valid termination of the provisions of this Section 3 pursuant to Section 8, the Stockholder agrees as follows:
(a) At any meeting of stockholders Stockholder of the Company CT called to vote upon the Merger and Warrant Issuance (as such term is defined in the Merger Agreement Venture 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 Warrant Issuance is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares all shares of CT Common Stock it owns or has 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 AgreementWarrant Issuance.
(b) At any meeting of stockholders Stockholder of the Company CT or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares all shares of CT Common Stock owned by it or over which it has voting control 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 or (ii) any amendment of the CompanyCT's certificate of incorporation or by-laws charter and amended and restated bylaws or other proposal or transaction involving the Company CT or any of its subsidiaries, which amendment or other proposal or transaction would reasonably be expected in any manner to impede, frustrate, prevent or nullify CT's ability or obligation to consummate or effect the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger AgreementWarrant Issuance.
(c) The Stockholder agrees shall not to (i) sell, transfer, pledge, assign Transfer or otherwise dispose Otherwise Dispose (as hereinafter defined) of, or enter into any contract, option agreement or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition ofto, the Subject Owned Shares to any person other than Purchaser or Purchaser's designee or person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwiseagreement, in connectionvoting trust, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit any investment banker, power of attorney or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information otherwise with respect to, the Owned Shares, except as provided in this Agreement and the Voting and Lockup Agreement or (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may would reasonably be expected in any way to lead torestrict, limit, or interfere with the performance of their obligations hereunder. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to restrict or prohibit the ability of (i) the Stockholder to transfer shares to immediate family members 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 Stockholder, and that notice and a copy of such agreement are provided to General XXXX XX prior to such transfer, (ii) the Stockholder from pledging up to a number of its shares of CT Common Stock to any Takeover Proposal, nationally recognized financial institution as collateral for a bona fide third party loan or from using up to a number of its shares of CT Common Stock as collateral for a bona fide third party margin loan with a nationally recognized financial institution or broker/dealer equal to the maximum number of shares that may be pledged pursuant to the Voting and Lockup Agreement or (iii) the Stockholder to enter into any an agreement with the respect to or approve or recommend any Takeover Proposal.
the voting and Disposition of shares of CT Common Stock between and among Stockholder and JRK Investment Partnership LP and CMH Investment Partnership, LP (e) So long as the Merger Agreement has not been terminated"JCV Group"), provided that the obligations of Stockholder shall tender pursuant in such agreement are expressly subordinate to the Offerobligations of Shareholder hereunder and there are no parties to such agreement other than the JCV Group. 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 creation of any other claim thereto or any other transfer or disposition whatsoever (including involuntary sales, exchanges, transfers or other dispositions, and whether or not withdrawfor cash or other consideration) affecting the right, all title, interest or possession in, to or of the Subject SharesCT Common Stock.
Appears in 1 contract
Covenants of the Stockholder. (a) The Stockholder agrees as follows:
to attend the meeting of stockholders of the Parent to be called with respect to the Merger (aincluding any adjournment thereof) in person or by proxy. At any meeting of stockholders of the Company Parent 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 Stockholder shall vote (or cause to be voted) the Subject Shares Shares, and any other voting securities of the Parent, owned by Stockholder whether issued heretofore or hereafter, that such person owns or has the right to vote, in favor of the Merger, the approval adoption by the Parent of the Merger Agreement and the approval of the 0he terms thereof and each of the other transactions contemplated by the Merger Agreement, including, if required, in favor of the issuance of warrants to the Company and/or Xxxxx X. Xxxxxxx.
(b) At any meeting of stockholders of the Company Parent or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares Shares, and any other voting securities of the Company, owned by Stockholder whether issued heretofore or hereafter, that such person owns or has the rights to vote, 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 Parent or any other Takeover Proposal Acquisition Transaction, or (ii) any amendment of the CompanyParent's certificate of incorporation or by-laws or other proposal or transaction involving the Company Parent 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 AgreementAgreement or which could result in any of the conditions to the Parent's obligations under the Merger Agreement not being fulfilled.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser or Purchaser's designee or (ii) enter into any voting arrangement, whether by proxy, voting arrangement, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover ProposalAcquisition Transaction.
(d) The Until the Merger Agreement is terminated and subject to Section 8 hereof, the Stockholder shall not, nor and shall the Stockholder permit use his best efforts to cause any investment banker, attorney or other adviser or representative of the Stockholder not to, (i) directly or indirectly solicit, initiate or knowingly encourage the submission of, any Takeover Proposal Acquisition Transaction or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or knowingly take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may would reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover ProposalAcquisition Transaction.
(e) So long as To secure the Merger Agreement has not been terminatedStockholder's commitments set forth in this Section 3, the Stockholder constitutes and appoints the Company or its officers and each of them, with full power of substitution, to be his true and lawful proxy and attorney-in-fact from the date hereof until conclusion of the meeting of stockholders of the Parent as provided in this Section 3 (including any adjournment or adjournments thereof) to vote all Subject Shares then beneficially owned by the Stockholder in accordance with this Section 3. This proxy shall tender pursuant to the Offerbe deemed coupled with an interest, and not withdrawis irrevocable during the term of this Agreement and will survive death, incompetency and disability of the Stockholder. To the extent inconsistent with this Section 3 hereof, the Stockholder hereby revokes any and all of previous proxies or written consents with respect to the Subject Shares.
Appears in 1 contract
Covenants of the Stockholder. The Stockholder covenants and agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger and Agreement, the Merger Agreement or any other Transactions, or at any adjournment thereof or postponement thereof, or in any other circumstances upon which a vote, consent consent, adoption or other approval (including by written consent solicitation) with respect to the Merger and Agreement, the Merger Agreement or any other Transactions is sought, the Stockholder shall vote (or cause to be voted) all of the Subject Shares of the Stockholder (owned of record or beneficially) in favor of the Mergerof, and shall consent in writing to (or cause to be consented in writing to), the approval adoption of the Merger Agreement and the approval of the terms thereof and of the Merger and each of the other transactions contemplated by the Merger AgreementTransactions.
(b) At any meeting of the stockholders of the Company or at any adjournment or postponement thereof or in any other circumstances upon which the Stockholder's a vote, consent consent, adoption or other approval (including by written consent solicitation) is sought, the Stockholder shall vote (or cause to be voted) all the Subject Shares against of the Stockholder (owned of record or beneficially) against, and shall not consent in writing to (and shall cause not to be consented in writing to), any of the following (or any agreement to enter into, effect, facilitate or support any of the following): (i) any merger agreement Takeover Proposal or merger (other than the Merger Agreement transaction or occurrence that if proposed and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by offered to the Company or its stockholders (or any other of them) would constitute a Takeover Proposal (collectively, "Alternative Transactions") or (ii) any amendment of the Company's certificate of incorporation or byCompany Charter, the Company By-laws or the Company Rights Agreement or other proposal proposal, action or transaction involving the Company or any of its subsidiariesstockholders, which amendment or other proposal proposal, action or transaction would could reasonably be expected to prevent or materially impede or delay the consummation of the Merger or the other Transactions or to dilute the benefits to Parent of the Merger and the other Transactions, or change in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any voting rights of the other transactions contemplated by the Merger AgreementCompany Common Stock (collectively, "Frustrating Transactions").
(c) The Other than pursuant to this Agreement, the Stockholder agrees shall not to (i) sell, transfer, pledge, assign or otherwise dispose ofof (including by gift) (collectively, "Transfer") or enter into any contractContract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, or the creation or offer of any derivative security in respect of, any Subject Shares Shares, to or with any person other than Purchaser or Purchaser's designee pursuant to the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares, and shall not commit or agree to take any of the foregoing actions. The Stockholder shall not, nor shall the Stockholder permit any entity under the Stockholder's control to, deposit any Subject Shares in connection, directly or indirectly, with any Takeover Proposala voting trust.
(d) The Stockholder shall not, nor shall the Stockholder facilitate any action by any of its subsidiaries to, nor shall it authorize or permit any investment bankerdirector, attorney officer, employee, consultant or other adviser Representative of the Stockholder or representative facilitate any action by any director, officer, employee, consultant or Representative of any subsidiaries of the Stockholder to, directly or indirectly (i) directly or indirectly solicit, initiate or encourage the submission ofor knowingly take any other action to facilitate, any Takeover Proposal or Frustrating Transaction, (ii) directly enter into any agreement with respect to any Takeover Proposal or indirectly Frustrating Transaction or (iii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person (other than Parent and any of its affiliates and Representatives) any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead to, any Takeover Proposal or Frustrating Transaction. The Stockholder shall promptly (and in no event later than 48 hours) advise Parent orally and in writing of any request for information that the Stockholder reasonably believes could lead to or contemplates a Takeover Proposal or of any Takeover Proposal, or any inquiry made to the Stockholder that could reasonably be expected to lead to any Takeover Proposal and the material terms and conditions of such request, Takeover Proposal or inquiry (iiiincluding any subsequent amendment or other modification to such terms and conditions) enter into and the identity of the person making any agreement such request, Takeover Proposal or inquiry. The Stockholder shall promptly keep Parent informed in all material respects of the status and material details (including material amendments or proposed material amendments) of any such request, Takeover Proposal or inquiry.
(i) 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; provided, however, the foregoing shall not require the expenditure of material funds by the Stockholder and shall not require the Stockholder to take actions that are required to be taken by the Company pursuant to the Merger Agreement other than as specifically provided in this Agreement. The Stockholder shall not commit or agree to take any action inconsistent with the Transactions.
(ii) The Stockholder shall not, nor shall the Stockholder facilitate any action by any of its subsidiaries or any of their Representatives to, nor shall the Stockholder authorize or permit any of its Representatives to, directly or indirectly, issue any press release or make any other public statement with respect to the Merger Agreement, this Agreement, the Merger or approve or recommend any Takeover Proposalother Transactions without the prior written consent of Parent, except as may be required by applicable Law.
(ef) So long as The Stockholder hereby waives any appraisal rights with respect to any and all shares of Company Capital Stock owned (of record or beneficially) by the Stockholder in connection with the Merger Agreement has not been terminated, that the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Sharesmay have.
Appears in 1 contract
Samples: Stockholder Agreement (Warburg Pincus Private Equity Viii L P)
Covenants of the Stockholder. The Stockholder agrees as follows:
(a) The Stockholder shall not, directly or indirectly, (i) sell, transfer (including by operation of Law), pledge, assign or otherwise encumber or dispose of any of the Securities to, or enter into any agreement, option or other arrangement (including any profit sharing arrangement) or understanding with respect to any of the Securities with, any Person other than Parent or Parent’s designee, (ii) deposit any Securities into a voting trust or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney, attorney-in-fact, agent or otherwise, with respect to the Securities, except as contemplated by this Agreement, or (iii) take any other action that would in any way make any representation or warranty of the Stockholder herein untrue or incorrect in any material respect or otherwise restrict, limit or interfere in any material respect with the performance of the Stockholder’s obligations hereunder or the transactions contemplated hereby.
(b) At any meeting of stockholders 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 (including by written consent) is sought with respect to the Merger and the Merger Agreement is soughtAgreement, the Stockholder shall vote (or cause to be voted) all Securities owned by the Subject Shares Stockholder, including without limitation the Securities set forth across from the Stockholder’s name in Exhibit A hereto, in favor of the Merger, the approval adoption of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Agreement.
(bc) At The Stockholder shall take, or cause to be taken, all reasonable actions to do or cause to be done, and to assist and cooperate with the Company and Parent in doing, all things reasonably necessary to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement, including (i) causing the Company to call the Company Stockholders’ Meeting for the purpose of considering, acting upon and voting upon the approval and adoption of the Merger Agreement, the Merger and all other transactions contemplated by the Merger Agreement, (ii) attending, if applicable, the Company Stockholders’ Meeting or any meeting adjournment thereof (or executing valid and effective proxies to any other attending participant of a Company Stockholders’ Meeting in lieu of attending such Company Stockholders’ Meeting or any adjournment thereof), and (iii) causing the Company to postpone or adjourn, at Parent’s request, the Company Stockholders’ Meeting (x) in order to solicit additional proxies for the purpose of obtaining the Company Stockholder Approval (unless prior to such adjournment the Company shall have received an aggregate number of proxies voting for the adoption of the Merger Agreement, which have not been withdrawn, such that the Company Stockholder Approval will be obtained at such meeting), (y) if a quorum is not present or (z) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated to, and reviewed by, the stockholders of the Company prior to the Company Stockholders’ Meeting.
(d) The Stockholder shall not, directly or at indirectly (including through any adjournment thereof Affiliate or Representative), (i) solicit, initiate, facilitate or knowingly encourage any inquiries with respect to or the implementation or submission of any Acquisition Proposal, or any proposals or offers that would be reasonably expected to lead to, an Acquisition Proposal (a “Competing Proposal”), (ii) engage in, continue or otherwise participate in any other circumstances discussions, communications or negotiations regarding, or furnish to any Person any non-public information in connection with, or for the purpose of facilitating or encouraging, any inquiries, proposals or offers that constitute, or would be reasonably expected to lead to, a Competing Proposal, except to notify such Person of the existence of this Section 1(d) or (iii) otherwise facilitate or encourage any effort or attempt to make a Competing Proposal, or any inquiries, proposals or offers that would reasonably be expected to lead to a Competing Proposal. The Stockholder shall, and shall cause its Subsidiaries to, and shall instruct (and use its reasonable best efforts to cause) its Representatives to, immediately cease and cause to be terminated any solicitation, discussions, communications or negotiations with any Person that may be ongoing with respect to a Competing Proposal, or any inquiry, proposal or offer that would reasonably be expected to lead to a Competing Proposal. The Stockholder shall promptly (and, in any event, within 48 hours) (i) provide Parent written notice of (A) the receipt of any Competing Proposal or (B) any inquiries, proposals or offers received by the Stockholder or any Affiliates or Representatives of the Stockholder concerning a Competing Proposal and (ii) disclose to Parent the identity of such Person making, and an unredacted copy of, any such Competing Proposal or any such inquiry, proposal or offer made in writing (or, if made orally, a reasonably detailed description of such Competing Proposal, inquiry, proposal or offer). The Stockholder shall, promptly upon which the Stockholder's votereceipt or delivery thereof (and, consent in any event, within 48 hours), provide Parent with copies of all drafts and final versions of definitive or other approval is soughtagreements including schedules and exhibits thereto (which may be redacted to the extent necessary to protect confidential information of the Person making such Competing Proposal) relating to such Competing Proposal, in each case exchanged between the Stockholder or any of its Representatives, on the one hand, and the Person making such Competing Proposal or any of its Representatives, on the other hand. The Stockholder shall keep Parent reasonably informed on a reasonably prompt basis (and, in any event, within 48 hours of any material development) of the status and details (including with respect to any material amendments) of any such Competing Proposal or other inquiry, proposal or offer concerning a Competing Proposal.
(e) The Stockholder shall vote (or cause to be voted) the Subject Shares its Securities against (i) any merger agreement or merger (other than the Merger Agreement Competing Proposal and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment action, proposal, transaction or agreement which would reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Merger or the fulfillment of Parent’s, the Company's ’s or Merger Sub’s conditions under the Merger Agreement or change in any manner the voting rights of any security of the Company (including by any amendments to the certificate of incorporation or by-laws bylaws of the Company).
(f) The Stockholder hereby (i) irrevocably and unconditionally waives, and agrees not to exercise, any rights of appraisal with respect to the Securities or other proposal rights to dissent from the Merger or transaction involving any similar right (including under Section 262 of the Company DGCL) that the Stockholder may have and (ii) agrees not to commence, institute, maintain or prosecute any claim, derivative or otherwise, (A) against the Company, any of its Representatives or any of its subsidiariessuccessors, which amendment including claims relating to the negotiation, execution, or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, delivery of the Merger Agreement or the consummation of the Merger, including any claim alleging a breach of any fiduciary duty of the Company Board in connection with the Merger and the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser or Purchaser's designee or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iiiB) enter into challenging the validity of or seeking to enjoin the operation of any agreement with respect to or approve or recommend any Takeover Proposalprovision of this Agreement.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 1 contract
Covenants of the Stockholder. The Stockholder Until the termination of this Agreement in accordance with Section 4, the Stockholder, in its capacity as such, agrees as follows:
(a) At any meeting of stockholders 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 (including by written consent) with respect to the Merger and the Merger Agreement is soughtsought from the stockholders of the Company, the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval of the Merger Agreement and the approval and adoption of the terms thereof and each of the other transactions contemplated by the Merger Agreement. Any such vote shall be cast or consent shall be given in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the results of such vote or consent. The Stockholder agrees not to enter into any agreement or commitment with any person the effect of which would be inconsistent with or violative of the provisions and agreements contained in this Section 3(a).
(b) At Except as the Stockholder is otherwise obligated under the First Purchase Agreement and the Second Purchase Agreement (subject to the Waiver, dated as of the date hereof, among the Stockholder, VHA Inc. and the Company), 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 of its Subsidiaries or any other Takeover Acquisition Proposal or (ii) any amendment of the Company's ’s certificate of incorporation or by-laws bylaws or other proposal or transaction involving the Company or any of its subsidiariesSubsidiaries, 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 AgreementAgreement or change in any manner the voting rights of any class of capital stock of the Company. The Stockholder further agrees not to commit or agree to take any action inconsistent with the foregoing.
(c) The Stockholder hereby appoints Xxxx Xxxxxxx and Xxxx Xxxx, and each of them individually, as the Stockholder’s proxy and attorney-in-fact, with full power of substitution and resubstitution, solely to vote or act by written consent prior to the termination of this Agreement with respect the Subject Shares in accordance with Section 3(a). This proxy is given to secure the performance of the duties of the Stockholder under this Agreement. The Stockholder shall promptly cause a copy of this Agreement to be deposited with the Company at its principal place of business. The Stockholder shall take such further action or execute such other instruments as may be reasonably necessary to effectuate the intent of this proxy. The proxy and power of attorney granted pursuant to this Section 3(c) by the Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by the Stockholder inconsistent with the proxy hereby granted. The power of attorney granted by the Stockholder herein is a durable power of attorney and shall survive the dissolution or bankruptcy of the Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement. The Stockholder represents that any proxies heretofore given in respect of the Stockholder’s Subject Shares are not irrevocable and that any such proxies are hereby revoked.
(d) Except as provided in Sections 3(a) and 3(c), the Stockholder agrees not to to, directly or indirectly, (i) sell, transfer, tender, pledge, encumber, assign or otherwise dispose ofof (collectively, a “Transfer”) or enter into any contractagreement, option or other arrangement (including any profit sharing arrangement) with respect to the saleto, transferor consent to, pledge, assignment or other disposition a Transfer of, any or all of the Subject Shares to any person other than Purchaser or Purchaser's designee person, that is inconsistent with its obligations under this Agreement, or (ii) grant any proxies, deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, in connection, directly or indirectly, each case that is inconsistent with any Takeover Proposalthis Agreement.
(de) The Stockholder hereby represents that it is not now engaged in discussions or negotiations with any party other than Parent with respect to any Acquisition Proposal. The Stockholder shall not, nor shall the Stockholder permit authorize any investment banker, consultant, attorney or other adviser advisor or representative of the Stockholder to, directly or indirectly (i) directly or indirectly solicit, initiate or encourage knowingly encourage, induce or facilitate the making, submission ofor announcement of any Acquisition Proposal, (ii) furnish any Takeover information (including non-public information) regarding the Company to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iiiiv) enter into any agreement Contract contemplating or providing for any Acquisition Transaction; provided, however, that this Section 3(e) shall not prohibit Stockholder from furnishing any information (including non-public information) regarding the Company to, or entering into discussions or negotiations with, any Person at any such time as the Company is engaging in such activities with respect to such Person in compliance with the terms and conditions of the Merger Agreement. Any such furnishing of information, discussions or approve or recommend any Takeover Proposalnegotiations shall be conducted in accordance with Section 4.3 of the Merger Agreement.
(ef) So long as At the Merger Agreement has not been terminatedrequest of Parent, the Stockholder shall tender pursuant use all commercially reasonable efforts to the Offertake, or cause to be taken, all actions, and not withdrawto do, or cause to be done, and to assist and cooperate with Parent in doing, all things reasonably necessary, proper or advisable to carry out the intent and purposes of the Subject Sharesthis Agreement.
Appears in 1 contract
Samples: Voting Agreement (University Healthsystem Consortium)
Covenants of the Stockholder. The Until the valid termination of the provisions of this Section 3 pursuant to Section 8, the Stockholder agrees as follows:
(a) At any meeting of stockholders Stockholder of the Company CT called to vote upon the Merger and Warrant Issuance (as such term is defined in the Merger Agreement Venture 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 Warrant Issuance is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares all shares of CT Common Stock it owns or has 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 AgreementWarrant Issuance.
(b) At any meeting of stockholders Stockholder of the Company CT or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares all shares of CT Common Stock owned by it or over which it has voting control 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 or (ii) any amendment of the CompanyCT's certificate of incorporation or by-laws charter and amended and restated bylaws or other proposal or transaction involving the Company CT or any of its subsidiaries, which amendment or other proposal or transaction would reasonably be expected in any manner to impede, frustrate, prevent or nullify CT's ability or obligation to consummate or effect the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger AgreementWarrant Issuance.
(c) The Stockholder agrees shall not to (i) sell, transfer, pledge, assign Transfer or otherwise dispose Otherwise Dispose (as hereinafter defined) of, or enter into any contract, option agreement or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition ofto, the Subject Owned Shares to any person other than Purchaser or Purchaser's designee or person, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwiseagreement, in connectionvoting trust, directly or indirectly, with any Takeover Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit any investment banker, power of attorney or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information otherwise with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesOwned Shares, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long except as provided in this Agreement and the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, Voting and not withdraw, all of the Subject Shares.Lockup
Appears in 1 contract
Samples: Stockholder Approval Agreement (Sz Investments LLC)
Covenants of the Stockholder. The Until the termination of this Agreement ---------------------------- in accordance with Section 11, the Stockholder agrees as follows:
(a) At Subject to Section 5, at any meeting of stockholders 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 (including by written consent) with respect to the Merger and the Merger Agreement is soughtsought from the Company's stockholders in their capacities as such, the Stockholder shall shall, including by executing a written consent if requested by Parent, vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval of the Merger Agreement and the adoption and approval by the Company of the terms thereof and each of the other transactions contemplated by the Merger Agreement.
(b) 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, the The Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), consent to any Transfer of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, any or all of the Subject Shares (or any interest therein) to any person other than Purchaser or Purchaser's designee pursuant to the terms of the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connectionconnection with, directly or indirectly, with any Takeover Proposal, and agrees not to commit or agree to take any of the foregoing actions; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Stockholder may, without the consent of Parent or any other person, transfer any or all of the Subject Shares (or any interest therein) to one or more members of the Stockholder's family, any trust for the benefit of the Stockholder or one or more members of the Stockholder's family or any entity controlled by the Stockholder so long as the transferee of such Subject Shares (or such interest therein) agrees to be bound by the applicable provisions of this Agreement.
(dc) The Stockholder shall not, nor shall the Stockholder permit he instruct any agent or any investment banker, attorney or other adviser or representative of the Stockholder to, directly or indirectly, (i) directly or indirectly solicit, initiate or knowingly encourage the submission to the Company of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations with any person (other than Parent and its affiliates, agents and representatives) regarding, or furnish to any such person any non-public information with respect to, or take any other action intended to facilitate any inquiries or the making of any inquiry or proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(ed) So long as If, at the time the Merger Agreement has not been terminatedis submitted for approval to the stockholders of the Company, the Stockholder is an "affiliate" of the Company for purposes of Rule 145 under the Securities Act or for purposes of qualifying the Merger for pooling of interests accounting treatment under Opinion 16 of the Accounting Principles Board and applicable SEC rules and regulations, the Stockholder shall tender pursuant deliver to Parent on or prior to the Offer, and not withdraw, all of Closing Date a written agreement substantially in the Subject Sharesform attached as Exhibit A to the Merger Agreement.
Appears in 1 contract
Covenants of the Stockholder. The Stockholder Up to and including the Option Expiration Date, each Stockholder, severally and not jointly, agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval adoption by the Company of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Agreement, provided that the terms of the Merger Agreement shall not have been amended to adversely affect the Stockholder.
(b) 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, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) other than by operation of law, sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, the Subject Shares to any person other than Purchaser Sub or PurchaserSub's designee or designee, (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposal.Proposal or (iii) convert the Subject Shares into Common Stock (except as required to effect the transaction contemplated by Section 1 of this Agreement). 7
(d) The Until the Merger is consummated or the Merger Agreement is terminated, the Stockholder shall not, nor shall the Stockholder it permit 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 Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the Stockholder shall tender pursuant to the Offer, and not withdraw, all of the Subject Shares.
Appears in 1 contract
Covenants of the Stockholder. The Until the earlier of the Closing Date and the termination of this Agreement in accordance with Section 9, the Stockholder agrees as follows:
(a) At any meeting of stockholders 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 Stockholder shall vote (or cause to be voted) the Subject Shares 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 stockholders of the Company Parent or at any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares (and each class thereof) against (i) any merger agreement or merger (other than the Merger Agreement and the Merger)Alternative Transaction, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the CompanyParent's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiariesParent, which amendment or other proposal or transaction would in any manner could impede, frustrate, prevent or nullify the MergerPurchase Agreement, the Merger Agreement Related Documents or any of the other transactions contemplated by thereby or change in any manner the Merger Agreementvoting rights of any class of Parent's capital stock, or (iii) any action that could cause Parent to breach any representation, warranty or covenant contained in the Purchase Agreement or the Related Documents. The Stockholder further agrees not to enter into any agreement or take any action inconsistent with the foregoing.
(cb) The Stockholder agrees shall not to (iA) sell, transfer, give, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), or consent to any Transfer of, any or all of such Subject Shares or the Options or any interest therein or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, the Subject Shares or the Options to any person other than Purchaser or Purchaser's designee Person or (iiB) enter into any voting arrangement, directly or indirectly, whether by proxy, voting agreement or otherwise, in connectionrespect of the Subject Shares or the Options, directly and the Stockholder agrees not to commit or indirectly, with agree to take any Takeover Proposalof the foregoing actions.
(dc) The Except as permitted by the Purchase Agreement, the Stockholder shall not, nor shall the Stockholder permit he cause any investment banker, attorney financial advisor, attorney, accountant or other adviser representative, to, directly or representative of the Stockholder toindirectly, (i) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect toincluding by way of furnishing information), or take any other action to facilitate facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected lead to lead to, any Takeover Proposal, an Alternative Transaction or (iiiii) enter into participate in any agreement with respect discussions or negotiations regarding any proposed Alternative Transaction. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any investment banker, financial advisor, attorney, accountant or other representative of such Stockholder, whether or not such Person is purporting to or approve or recommend any Takeover Proposalact on behalf of the Stockholder, shall be deemed to be a violation of this Section 4(c) by the Stockholder.
(ed) So long The Stockholder, and any beneficiary of a revocable trust for which such Stockholder serves as trustee, shall not take any action to revoke or terminate such trust or take any other action which would restrict, limit or frustrate in any way the Merger Agreement has not been terminatedtransactions contemplated by this Agreement, the Stockholder shall tender pursuant Purchase Agreement or the Related Documents. Each such beneficiary hereby acknowledges and agrees to be bound by the Offer, and not withdraw, all terms of the Subject Sharesthis Agreement applicable to it.
Appears in 1 contract
Covenants of the Stockholder. The Stockholder Until the termination of this Agreement in accordance with Section 5, the Stockholder, in its capacity as such, agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote upon the Merger and the Merger Agreement eMerge ("eMerger Meeting") or at any adjournment adjournment, postponement or continuation thereof or in any other circumstances occurring prior to the eMerge Meeting upon which a vote, consent or other approval (including by written consent) with respect to the Merger and the Merger Agreement is soughtsought , the Stockholder shall vote (or cause to be voted) the Subject Shares (and each class thereof) (i) in favor of the approval of each matter recommended by the Board of Directors of eMerge to be undertaken in connection with the Merger, including, if required, the approval and adoption of the Merger Agreement and the approval transactions contemplated hereby and any matter that could reasonably be expected to facilitate the Merger; (ii) in favor of any alternative structure as may be agreed upon by the Company, Shield, Merger Sub and eMerge to reflect the acquisition by Shield of control of eMerge, provided that such alternative structure is on terms in the aggregate no less favorable to the Stockholder than the terms thereof and each of the other transactions contemplated by the Merger Agreement.
; and (biii) At any meeting of stockholders except with the written consent of the Company or at Company, against any adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is soughtTakeover Proposal, the Stockholder shall vote (consummation of any Superior Proposal or cause to be voted) the Subject Shares against (i) any merger action, proposal, or agreement or merger transaction (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or (ii) any amendment of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or the transaction contemplated thereby) that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of eMerge under the Merger Agreement which could result in any of the conditions to eMerge's obligations under the Merger Agreement not being fulfilled or which could be inconsistent with the Merger or any other transactions transaction contemplated by the Merger Agreement.
(c) The . Any such vote shall be cast or consent shall be given in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the results of such vote or consent. Such Stockholder agrees not to enter into any agreement or commitment with any person the effect of which would be inconsistent with or violative of the provisions and agreements contained in this Section 3(a). This Agreement is intended to bind the Stockholder as a stockholder of eMerge only with respect to the specific matters set forth herein.
(b) Such Stockholder agrees not to, directly or indirectly, (i) sell, transfer, tender, pledge, encumber, assign or otherwise dispose ofof (collectively, a "Transfer") or enter into any contractagreement, option or other arrangement (including any profit sharing arrangement) with respect to, or consent to the sale, transfer, pledge, assignment or other disposition a Transfer of, or convert or agree to convert, any or all of the Subject Shares to any person person, other than Purchaser or Purchaser's designee in accordance with the Merger Agreement, or (ii) grant any proxies (other than eMerge proxy card in connection with the eMerge Meeting if and to the extent such proxy is consistent with the Stockholder's obligations under Section 3(a) hereof), deposit any Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of the Subject Shares, other than pursuant to this Agreement. Such Stockholder further agrees not to commit or agree to take any of the foregoing actions or take any action that would have the effect of preventing, impeding, interfering with or adversely affecting its ability to perform its obligations under this Agreement.
(c) The Stockholder shall not, nor shall such Stockholder permit any controlled affiliate of such Stockholder to, nor shall such Stockholder act in connectionconcert with or permit any controlled affiliate to act in concert with any person to make, or in any manner participate in, directly or indirectly, a "solicitation" (as such term is used in the rules of the Securities and Exchange Commission ("SEC")) of proxies or powers of attorney or similar rights to vote, or seek to advise or influence any person with respect to the voting of, any shares of Stock intended to facilitate any Takeover Proposal or to cause stockholders of eMerge not to vote to approve and adopt the matters recommended by the eMerge Board of Directors in connection with the Merger. Such Stockholder shall not, and shall direct any investment banker, attorney, agent or other adviser or representative of such Stockholder not to, directly or indirectly, through any officer, director, agent or otherwise, enter into, solicit, initiate, conduct or continue any discussions or negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or provide any information to, any person, other the Company, relating to any Takeover Proposal. Such Stockholder hereby represents that, as of the date hereof, it is not engaged in discussions or negotiations with any party other than the Company with respect to any Takeover Proposal.
(d) The Stockholder shall not, nor shall agrees that any shares of Stock of eMerge that the Stockholder permit any investment banker, attorney purchases or other adviser or representative of the Stockholder to, (i) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, which the Stockholder shall tender pursuant otherwise acquires beneficial ownership after the date of this Agreement and prior to the OfferTermination Date ("New Shares"), and not withdrawany and all other shares or securities of eMerge issued, all exchanged, issuable or exchangeable in respect of New Shares shall be subject to the Subject Sharesterms and conditions of this Agreement to the same extent as if they constituted shares of Stock.
Appears in 1 contract
Samples: Voting and Lock Up Agreement (Safeguard Scientifics Inc)
Covenants of the Stockholder. The Stockholder hereby covenants and agrees as follows:
(a) At any meeting During the Transaction Voting Period, the Stockholder will: (i) attend and participate in, either in person or by proxy (and cause all of its Subject Shares to be counted as present at), all meetings of the stockholders of the Company called to vote upon in connection with the Merger and Investment Transactions, the Merger Agreement Investment Documents (including the Purchase Agreement) and/or any other transactions contemplated thereby (including any postponements or adjournments thereof, a Transaction Meeting), and, at any adjournment thereof Transaction Meeting, or in any other circumstances upon which a vote, consent or other approval of the stockholders of the Company with respect to any of the Merger and foregoing is sought without a Transaction Meeting having been called (including, without limitation, pursuant to Section 228 of the Merger Agreement is soughtDGCL), the Stockholder shall vote its Subject Shares (or provide a written consent), or cause its Subject Shares to be voted (or cause a written consent to be voted) the Subject Shares in favor of the Mergerexecuted and delivered), for the approval of the Merger Agreement Investment Transactions and the approval of the terms thereof and each of the any other transactions contemplated by the Merger Investment Documents (including the Purchase Agreement) and any other matters relating thereto presented for approval of the stockholders of the Company; and (ii) vote its Subject Shares at any such Transaction Meeting (or provide a written consent in any other circumstances upon which a vote, consent or other approval of the stockholders of the Company with respect thereto is sought without a Transaction Meeting having been called), or cause its Subject Shares to be voted (or cause a written consent to be executed and delivered), against the approval of (A) any action set forth in Section 5.2(b) of the Purchase Agreement for which the written consent of Ipsen has not been obtained, (B) or any other action or Contract that is intended to or could reasonably be expected to impede, interfere with, delay or discourage the Investment Transactions or any other transactions contemplated by the Investment Documents and (C) except as otherwise contemplated by the Investment Documents, change the voting rights of any class of capital stock of the Company.
(b) At any meeting During the Governance Voting Period, the Stockholder will attend and participate in, either in person or by proxy (and cause all of its Subject Shares to be counted as present at), all meetings of the stockholders of the Company called (i) at which members of the Company's board of directors (the Board) are elected or any other matters relating to the size or composition of the Board are proposed (including any postponements or adjournments thereof, a Director Meeting), and, at any adjournment thereof Director Meeting, or in any other circumstances upon which the Stockholder's a vote, consent or other approval of the stockholders of the Company with respect to any of the foregoing is soughtsought without a Director Meeting having been called (including, without limitation, pursuant to Section 228 of the Stockholder shall DGCL), vote its Subject Shares (or provide a written consent), or cause its Subject Shares to be voted (or cause a written consent to be votedexecuted and delivered): (A) in favor of each Investor Director that Investor is then entitled to designate to the Subject Shares Board pursuant to Section 2.4 of the Affiliation Agreement and, insofar as any necessary to cause any such Investor Director to be elected to the Board, withhold its vote for all other individuals nominated for election to the Board, (B) in favor of the number of authorized directors on the Board to be set and remain at nine, and against (i) any merger agreement or merger (other than change in the Merger Agreement number of authorized directors on the Board from nine, except as agreed between Ipsen and the Merger)Company, consolidation, combination, sale and (C) against any proposal to remove any Investor Director from the Board that Investor is then entitled to designate to the Board pursuant to Section 2.4 of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Takeover Proposal or Affiliation Agreement; and (ii) in connection with the Investment Transactions, the Investment Documents (including the Purchase Agreement) and/or any amendment other transactions contemplated thereby (including any postponements or adjournments thereof, a Subsequent Transaction Meeting), and, at any Subsequent Transaction Meeting, or in any other circumstances upon which a vote, consent or other approval of the Company's certificate stockholders of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, the Merger Agreement or with respect to any of the other foregoing is sought without a Subsequent Transaction Meeting having been called (including, without limitation, pursuant to Section 228 of the DGCL), vote its Subject Shares (or provide a written consent), or cause its Subject Shares to be voted (or cause a written consent to be executed and delivered), (A) for the approval of any transactions contemplated by the Merger Investment Documents (including the Purchase Agreement) and any other matters relating thereto presented for approval of the stockholders of the Company, and (B) against the approval of any other action or Contract that is intended to or could reasonably be expected to impede, interfere with, delay or discourage the transactions contemplated by the Investment Documents; provided, however, that nothing in this Section 3(b)(ii) shall obligate the Stockholder with respect to any matter set forth in Section 2.7 of the Affiliation Agreement.
(c) The Stockholder agrees not hereby irrevocably grants to, and appoints Claire Giraut or Xxxxx Xxxxxx in either of their respective capacities as officers and/or directors of Investor, and any individual who shall hereafter succeed to either such individual (i) sellindividually, transferan Authorized Party and, pledgecollectively, assign or otherwise dispose ofthe Authorized Parties), 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, or enter into any contract, option execute one or other arrangement (including any profit sharing arrangement) with more written consents or approvals in respect to the sale, transfer, pledge, assignment or other disposition of, of the Subject Shares to any person other than Purchaser or Purchaser's designee or (iiin accordance with the agreements set forth in Sections 3(a) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposaland 3(b) above.
(d) The Stockholder shall nothereby confirms that the irrevocable proxy set forth in Section 3(c) is given in connection with the execution of the Purchase Agreement. The Stockholder hereby further affirms that the irrevocable proxy granted hereby is coupled with an interest and may under no circumstances be revoked during the Transaction Voting Period or the Governance Voting Period. The Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof.
(e) Until the consummation of the First Closing, nor shall the Stockholder will not: (i) sell, assign, transfer or otherwise dispose of, or permit to be sold, assigned, transferred or otherwise disposed of, any investment bankerof the Subject Shares (except as Ipsen may otherwise consent in writing, attorney in Xxxxx'x sole discretion); (ii) grant any proxy, deposit any Subject Shares in a voting trust or other adviser enter into a voting agreement, power of attorney, voting trust or representative similar Contract with respect to the Subject Shares (except for this Agreement); or (iii) take any action that would make any representation or warranty of the Stockholder contained herein untrue or incorrect in any material respect or have the effect of preventing the Stockholder from the strict compliance in performance with any of its covenants and other obligations hereunder. Notwithstanding the foregoing, if the First Closing has not occurred by October 15, 2006, then this Section 3(e) shall not prohibit a transfer of the Subject Shares held by Stockholder:
(i) if Stockholder is an individual: (A) up to 10% of the Subject Shares held by Stockholder to any member of Stockholder's immediate family, or to a trust for the benefit of Stockholder or any member of Stockholder's immediate family; or (B) upon the death of Stockholder; or (ii) if Stockholder is a partnership or limited liability company, to one or more current or former partners or members of Stockholder or to an affiliated corporation under common control with Stockholder; provided, however, that a transfer referred to in part (i) or (ii) of this sentence shall be permitted only if, as a precondition to such transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Ipsen, to be bound by all of the terms of this Agreement (including without limitation the irrevocable proxy contained herein).
(f) Until the consummation of the First Closing, the Stockholder will not and will use its commercially reasonable efforts to cause its Affiliates or any of its or their directors, officers, employees, agents or representatives not to, (i) directly negotiate, authorize, recommend, enter into or indirectly solicitpropose to enter into, initiate with any person other than Investor or encourage the submission ofpersons designated by Investor, any Takeover Proposal or Competing Transaction, (ii) directly or indirectly participate continue to engage in any pending discussions or negotiations regardingwith any third party concerning any previously proposed Competing Transaction, (iii) knowingly encourage, solicit or initiate discussions, negotiations or submissions of proposals, indications of interest or offers in respect of a Competing Transaction, or (iv) knowingly furnish or cause to be furnished to any person any information with respect to, or take any other action to facilitate any inquiries or the making in furtherance of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement with respect to or approve or recommend any Takeover Proposala Competing Transaction.
(eg) So long The Stockholder shall from time to time, execute and deliver, or cause to be executed and delivered, such additional or further consents, documents, agreements, proxies and other instruments as Ipsen shall reasonably request for the Merger Agreement has not been terminatedpurpose of effectively carrying out the transactions contemplated by this Agreement.
(h) Until the consummation of the First Closing, the Stockholder shall tender pursuant not issue any press release or make any other public statement with respect to Investor, the Company, the Investment Documents, the Investment Transactions or any transactions contemplated thereby, except to the Offerextent required by Applicable Law (and in such case, and not withdraw, all of the Subject Sharesonly following notice to Ipsen).
Appears in 1 contract
Covenants of the Stockholder. The Until the termination of this Agreement in accordance with Section 6, the Stockholder agrees as follows:
(a) At any meeting of stockholders of the Company called to vote upon the Merger Debenture and Note Purchase Agreement, as the same may be amended, and the Merger Agreement transactions contemplated by the Debenture and Note Purchase Agreement, or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Merger Debenture and Note Purchase Agreement and the Merger Agreement transactions contemplated thereby is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the approval of the Merger Debenture and Note Purchase Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Debenture and Note Purchase Agreement.
(b) At any meeting of stockholders of the Company or at any other adjournment thereof or in any other circumstances upon which the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares against (i) any merger agreement or merger (other than the Merger Agreement and the Merger)merger, consolidation, combination, sale of or substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other takeover proposal, as such term is defined in the Debenture and Note Purchase Agreement (a "Takeover Proposal Proposal") or (ii) any amendment of the Company's certificate of incorporation or by-laws bylaws or other proposal (including with respect to the election of directors) 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 Debenture and Note Purchase Agreement or any of the other transactions contemplated by the Merger Debenture and Note Purchase Agreement. Subject to Section 8, the Stockholder further agrees not to commit or agree to take any action inconsistent with the foregoing.
(c) The Except with respect to the estate tax lien to which the Subject Shares are currently subject, the Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose ofof (including by gift) (collectively, "Transfer"), or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition Transfer of, the Subject Shares to any person other than Purchaser or Purchaser's designee person, or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connectionconnection with, directly or indirectly, with any Takeover Proposal. Notwithstanding the foregoing, the Stockholder shall have the right to transfer the Subject Shares to a trust which is the beneficiary of the Stockholder entitled to a distribution of the Subject Shares to it; provided, however, that in the event of such a transfer, the transferee shall take the Subject Shares subject to the terms of this Agreement and following the due execution and delivery to Investors by each such transferee shall execute and deliver to the Investors a counterpart to this Agreement. It is expressly understood that, if the Subject Shares are acquired upon a foreclosure of the estate tax lien to which they are currently subject, the transferee shall acquire such shares free and clear of the provisions of this Agreement.
(d) The Subject to the terms of Section 8 hereof, during the term of this Agreement, the Stockholder shall not, in its capacity as an individual stockholder of the Company with respect to the Subject Shares, nor shall the Stockholder it permit any investment banker, attorney or other adviser or representative of the Stockholder in its capacity as an individual stockholder of the Company with respect to the Subject Shares to, (i) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement except to the extent such actions are by the trustee of the Stockholder in his capacity as a director of the Company in connection with respect actions permitted to or approve or recommend any Takeover Proposalthe Company under Section 6.2 of the Debenture and Note Purchase Agreement.
(e) So long as Until after the Merger closing contemplated by the Debenture and Note Purchase Agreement has not been is consummated or the Debenture and Note Purchase Agreement is terminated, the Stockholder shall tender pursuant use all reasonable efforts to the Offertake, or cause to be taken, all actions, and not withdrawto do, or cause to be done, and to assist and cooperate with the Company and Investors in doing, all of things necessary, proper or advisable to consummate and make effective, in the Subject Sharesmost expeditious manner practicable, the transactions contemplated by the Debenture and Note Purchase Agreement.
Appears in 1 contract
Covenants of the Stockholder. The Stockholder agrees as follows:
(a) The Stockholder shall not, directly or indirectly, (i) sell, transfer (including by operation of law), pledge, assign or otherwise encumber or dispose of, or enter into any agreement, option or other arrangement (including any profit sharing arrangement) or understanding with respect to any of the Securities to any person; provided, that, in the event that the Stockholder is a party, as of the date hereof, to a written plan for trading the Securities in accordance with Rule 10b5-1 under the Exchange Act (a “10b5-1 Plan”), the Stockholder may sell pursuant to such 10b5-1 Plan up to that number of Securities as permitted to be sold under such 10b5-1 Plan, (ii) deposit any Securities into a voting trust or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney, attorney-in-fact, agent or otherwise, with respect to the Securities, except as contemplated by this Agreement, or (iii) take any other action that would in any way make any representation or warranty of the Stockholder herein untrue or incorrect in any material respect.
(b) At any meeting of stockholders of the Company Parent Stockholders called to vote upon the Merger and the Merger Agreement Parent Voting Proposal or at any adjournment adjournment, postponement or recess thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent) is sought with respect to the Merger and the Merger Agreement is soughtParent Voting Proposal, the Stockholder shall vote (or cause to be voted) all of the Subject Shares Securities: (i) in favor of the Merger, the approval of the Merger Agreement and the approval issuance of the Merger Shares in the Merger pursuant to the terms thereof and each of the other transactions contemplated by the Merger Agreement.
, (bii) At against any meeting of stockholders of the Company or at any adjournment thereof or in Parent Acquisition Proposal and (iii) against any other circumstances upon which the Stockholder's voteaction or agreement that would result in a breach of any covenant, consent representation or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares 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 warranty or any other Takeover Proposal obligation or (ii) any amendment agreement of the Company's certificate of incorporation or by-laws or other proposal or transaction involving the Company or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Merger, Parent under the Merger Agreement or which would result in any of the other transactions contemplated by conditions to the consummation of the Merger Agreementunder the Merger Agreement not being fulfilled.
(c) The Stockholder agrees not shall use commercially reasonable efforts to (i) sell, transfer, pledge, assign or otherwise dispose oftake, or enter into any contractcause to be taken, option all reasonable actions, and to do, or cause to be done, and to assist the other arrangement (including any profit sharing arrangement) with respect parties in doing, all things reasonably necessary, proper or advisable to fulfill the saleStockholder’s obligations under this agreement, transferincluding, pledgewithout limitation, assignment or other disposition ofattending, if applicable, the Subject Shares Parent Stockholder Meeting or any adjournment, postponement or recess thereof (or executing valid and effective proxies to any person other than Purchaser attending participant of a Parent Stockholder Meeting in lieu of attending such Parent Stockholder Meeting or Purchaser's designee any adjournment, postponement or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in connection, directly or indirectly, with any Takeover Proposalrecess thereof).
(d) The Stockholder shall not, nor shall the Stockholder permit not exercise any investment banker, attorney or other adviser or representative rights (including under Section 262 of the Stockholder to, (iDelaware General Corporation Law) directly or indirectly solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making demand appraisal of any proposal Company Stock that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, or (iii) enter into any agreement arise with respect to or approve or recommend any Takeover Proposalthe Merger.
(e) So long as The Stockholder authorizes and agrees to permit Parent and Merger Sub to publish and disclose in the Merger Proxy Statement and any related filings under the securities laws of the United States or any state thereof the Stockholder’s identity and ownership of Securities and the nature of Stockholder’s commitments, arrangements and understandings under this Agreement has not been terminated, and any other information required by applicable Law. None of the information relating to the Stockholder shall tender pursuant provided by or on behalf of the Stockholder in writing for inclusion in the Proxy Statement will, at the respective times that the Proxy Statement is filed with the SEC or is first mailed to the Offer, and not withdraw, all holders of the Subject SharesParent Common Stock, contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Voting Agreement (Capnia, Inc.)