No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement. (b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.
Appears in 13 contracts
Samples: Tender and Support Agreement (Cadeler a/S), Tender and Support Agreement (Cadeler a/S), Tender and Support Agreement (Cadeler a/S)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termshereunder, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Share Encumbrance, other than Permitted Share Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer), including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract Contract, option or other agreement (including profit sharing agreement), arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, until the Termination Date, such Stockholder shall not, directly or indirectly, accept any tender offer or exchange offer that constitutes a Acquisition Proposal and shall not tender any Subject Shares in accordance with its termsany such tender offer or exchange offer.
Appears in 9 contracts
Samples: Tender and Support Agreement (Pitney Bowes Inc /De/), Tender and Support Agreement (Pitney Bowes Inc /De/), Tender and Support Agreement (Pitney Bowes Inc /De/)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (whichhereunder, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Share Encumbrance, other than Permitted Share Encumbrances, on any of such Stockholder’s the Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer), including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s the Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract Contract, option or other agreement (including any profit sharing agreement), arrangement or understanding with respect to any Transfer of such Stockholder’s the Subject Shares or any legal or beneficial interest therein; provided, (iv) grant or permit however, that the grant foregoing restrictions shall not apply to Transfers of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to an Affiliate of Stockholder, any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned or by will or intestacy; provided such transferee executes a Permitted Transferee (as defined below) (any such Transfer written agreement, in form and any Transfer as Parent may agree pursuant substance reasonably acceptable to Section 4.01(d) belowParent, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) to assume all of Stockholder’s obligations hereunder in respect of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement such Transfer and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to such Subject Shares (any Stockholder that is such Transfer, a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder“Permitted Transfer”), or (iiid) take or permit any trust other action that would in any way restrict, limit or other Person established byinterfere with the performance of Stockholder’s obligations hereunder, except for any action as would not reasonably be expected, either individually or in the aggregate, to materially impair, impede, delay or frustrate the ability of Stockholder to perform Stockholder’s obligations hereunder or to consummate the transactions contemplated hereby on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersa timely basis. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding anything in this Agreement in accordance with its termsto the contrary, until the Termination Date, Stockholder shall not, directly or indirectly, accept any tender offer or exchange offer that constitutes an Acquisition Proposal and shall not tender any Subject Shares into any such tender offer or exchange offer.
Appears in 5 contracts
Samples: Tender and Support Agreement (Hale Capital Partners, LP), Tender and Support Agreement (Adept Technology Inc), Tender and Support Agreement (Adept Technology Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes including pursuant to Section 1.1 or Section 4.1) or under the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such StockholderShareholder’s Subject Shares, shares of Common Stock or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such StockholderShareholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such StockholderShareholder’s Subject Sharesobligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Shareholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of initio and such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (Shareholder agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Shareholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any equity interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Shareholder may make Transfers of such Shareholder’s Shares or any right or interest therein and any other shares of common stock held by such Shareholder (a) to any wholly-owned Subsidiary of such Shareholder or any Affiliate of such Shareholder, in which case any Subject Shares so Transferred shall continue to be bound by this Agreement and provided that any such transferee agrees in accordance with writing to be bound by the terms and conditions of this Agreement prior to the consummation of, and as a condition to, any such Transfer; or (b) as Parent may otherwise agree in writing in its termssole discretion.
Appears in 4 contracts
Samples: Tender and Support Agreement (Oepx, LLC), Tender and Support Agreement (X Rite Inc), Tender and Support Agreement (X Rite Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement)hereunder, from and after the date hereof and until the valid termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such StockholderShareholder’s Subject Shares, (iib) offer, transfer, sell (including short sell), assign, loan, encumber, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution), or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderShareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such StockholderShareholder’s Subject Shares or any legal or beneficial or other interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such StockholderShareholder’s Subject Shares or any interest therein, (ve) deposit or permit the deposit of any of such StockholderShareholder’s Subject Shares into a voting trust or trust, enter into a voting agreement agreement, understanding or arrangement with respect to any of such StockholderShareholder’s Subject SharesShares or tender any of such Shareholder’s Subject Shares in a tender offer or (f) take or knowingly permit any other action that would in any way prohibit or materially restrict, limit or interfere with the performance of such Shareholder’s obligations under this Agreement or the consummation of the transactions contemplated hereby. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initioinitio and such Shareholder agrees that any such prohibited action may and shall be enjoined. Notwithstanding the foregoing, any Stockholder Shareholder may Transfer all Subject Shares (i) if an entity, to any Affiliate of such Shareholder, or (ii) if a natural person, (A) to any member of such Shareholder’s immediate family, (B) to a trust for the sole benefit of such Shareholder or any portion member of such StockholderShareholder’s immediate family, the sole trustees of which are such Shareholder or any member of such Shareholder’s immediate family, (C) by will or under the laws of intestacy upon the death of such Shareholder, (D) to a charitable organization, (iii) to any custodian or nominee for the purpose of holding such Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all for the account of the representations Shareholder or its Affiliates (provided that such Shareholder maintain all investment and warranties in voting control to allow such Shareholder to comply with the terms of this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares), prior to or (iv) in connection with the date tender of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to in the terms of this Offer as provided hereunder and under the Purchase Agreement and to be bound by (the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, Transfers described in clauses (i) an immediate family member of such Stockholder), (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) (that, with respect to Transfers described in clauses (i) and (ii), comply with the joinder required by the following proviso), the “Permitted Transfers”); provided that any trust such transfer referred to in clauses (i) or other Person established by(ii)(A) through (D) shall be permitted only if the transferee shall have executed and delivered to Parent and Buyer, or on behalf of, a joinder to this Agreement pursuant to which such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes transferee shall be bound by all of the terms and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersprovisions of this Agreement. If any involuntary Transfer of any of such StockholderShareholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser Buyer at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until the valid termination of this Agreement in accordance with its terms. Notwithstanding anything in this Agreement to the contrary, such Shareholder may make Transfers of its Subject Shares as Parent may agree by written consent.
Appears in 4 contracts
Samples: Tender and Support Agreement (Thermo Fisher Scientific Inc.), Transfer Restriction Agreement (Thermo Fisher Scientific Inc.), Transfer Restriction Agreement (Olink Holding AB (Publ))
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder, from and after during the date hereof and until time this Agreement is terminatedin effect, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceShare Lien, other than Permitted EncumbrancesShare Liens, on any of such StockholderShareholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge assign gift or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer (other than the Offer andOffer)), including, for the avoidance of doubt, any transfer or entry into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderShareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing); provided that either Shareholder shall be permitted to Transfer any Subject Shares to the other Shareholder, so long as such Subject Shares continue to be Subject Shares hereunder, (iiic) enter into any pledging or hedging Contract, derivative arrangement, option or other Contract with respect to any Transfer of such Stockholder’s (including profit sharing agreement) that would prevent Shareholder from delivering the Subject Shares into the Offer or any legal or beneficial interest thereinfrom voting the Subject Shares, in each case, in accordance herewith, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such StockholderShareholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such StockholderShareholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such StockholderShareholder’s Subject SharesShares or (f) take or permit any other action that would prevent the performance of such Shareholder’s obligations hereunder or otherwise make any representation or warranty of such Shareholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding ; provided that the foregoingTransfer restrictions set forth in Section 4.1(b) shall terminate as of 11:59 p.m. (New York City time) on April 25, any Stockholder may 2018 (the “Transfer Restriction Cut-Off Time”); it being understood that all or any portion of such Stockholder’s Subject Shares not Transferred in accordance with this Agreement after the Transfer Restriction Cut-Off Time shall continue to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant be subject to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties restrictions applicable to Subject Shares set forth in this Agreement with respect to such Stockholder would be true Agreement, including under Article I and correct upon such Transfer and (y) the Permitted Transferee of such Subject Sharesthis Section 4.1, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely except for the benefit of, such Stockholder and/or his or her immediate family membersrestrictions set forth in Section 4.1(b). If any involuntary Transfer of any of such StockholderShareholder’s Subject Shares in the Company shall occur (including, but not limited to, including a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, until the termination of this Agreement, such Shareholder shall not, directly or indirectly, accept any tender offer or exchange offer that constitutes an Alternative Acquisition Proposal and shall not tender any Subject Shares in any such tender offer or exchange offer. Nothing in this Agreement shall prohibit any pledging or hedging or entering into any Contract, derivative arrangement, option or other Contract (including profit sharing agreement) that will not prevent Shareholder from delivering the Subject Shares into the Offer or from voting the Subject Shares, in each case, in accordance with herewith. Notwithstanding the foregoing, such Stockholder may make Transfers of its termsSubject Shares as Buyer may agree in writing in its sole discretion.
Appears in 4 contracts
Samples: Purchase Agreement (Qualcomm Inc/De), Tender and Support Agreement (Qualcomm Inc/De), Purchase Agreement (NXP Semiconductors N.V.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as expressly provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance Section 1.3 or in connection with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsany transaction to which Section 4.7 is applicable, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, a “Transfer”), any or all of such Stockholder’s Subject Shares, Shares or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Subject Shares (other than, following a termination of this Agreement, Subject Shares that are not Restricted Voting Shares), or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s Subject Sharesobligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, including a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Such Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in accordance the Company for the purpose of opposing or competing with its termsor taking any actions inconsistent with the transactions contemplated by the Merger Agreement.
Appears in 4 contracts
Samples: Tender and Support Agreement, Tender and Support Agreement (Southwall Technologies Inc /De/), Tender and Support Agreement (Solutia Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder, from and after during the date hereof and until time this Agreement is terminatedin effect, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceShare Lien, other than Permitted EncumbrancesShare Liens, on any of such StockholderShareholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge assign gift or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer (other than the Offer andOffer)), including, for the avoidance of doubt, any transfer or entry into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderShareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing); provided that any Shareholder shall be permitted to Transfer any Subject Shares to another Shareholder, so long as such Subject Shares continue to be Subject Shares hereunder, (iiic) enter into any pledging or hedging Contract, derivative arrangement, option or other Contract with respect to any Transfer of such Stockholder’s (including profit sharing agreement) that would prevent Shareholder from delivering the Subject Shares into the Offer or any legal or beneficial interest thereinfrom voting the Subject Shares, in each case, in accordance herewith, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such StockholderShareholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such StockholderShareholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such StockholderShareholder’s Subject SharesShares or (f) take or permit any other action that would prevent the performance of such Shareholder’s obligations hereunder or otherwise make any representation or warranty of such Shareholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding ; provided that the foregoingTransfer restrictions set forth in Section 4.1(b) shall terminate as of 11:59 p.m. (New York City time) on April 25, any Stockholder may 2018 (the “Transfer Restriction Cut-Off Time”); it being understood that all or any portion of such Stockholder’s Subject Shares not Transferred in accordance with this Agreement after the Transfer Restriction Cut-Off Time shall continue to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant be subject to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties restrictions applicable to Subject Shares set forth in this Agreement with respect to such Stockholder would be true Agreement, including under Article I and correct upon such Transfer and (y) the Permitted Transferee of such Subject Sharesthis Section 4.1, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely except for the benefit of, such Stockholder and/or his or her immediate family membersrestrictions set forth in Section 4.1(b). If any involuntary Transfer of any of such StockholderShareholder’s Subject Shares in the Company shall occur (including, but not limited to, including a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, until the termination of this Agreement, such Shareholder shall not, directly or indirectly, accept any tender offer or exchange offer that constitutes an Alternative Acquisition Proposal and shall not tender any Subject Shares in any such tender offer or exchange offer. Nothing in this Agreement shall prohibit any pledging or hedging or entering into any Contract, derivative arrangement, option or other Contract (including profit sharing agreement) that will not prevent Shareholder from delivering the Subject Shares into the Offer or from voting the Subject Shares, in each case, in accordance with herewith. Notwithstanding the foregoing, such Stockholder may make Transfers of its termsSubject Shares as Buyer may agree in writing in its sole discretion.
Appears in 4 contracts
Samples: Tender and Support Agreement (Qualcomm Inc/De), Tender and Support Agreement (Qualcomm Inc/De), Tender and Support Agreement (Qualcomm Inc/De)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of, and compliance with, such Stockholder’s obligations hereunder in any material respect, otherwise make any representation or warranty of such Stockholder herein untrue or incorrect, or have the effect of preventing or disabling such Stockholder from performing, and complying with, any of its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any Stockholder each stockholder may Transfer all or Subject Shares to any portion Affiliate of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), ; provided, that a such Transfer described in this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon at the time of such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory transferee shall have executed and delivered to Parent (acting reasonably) and Merger Sub a counterpart to accept this Agreement pursuant to which such Subject Shares subject to transferee shall be bound by all of the terms and provisions of this Agreement and to be bound by the terms of this Agreement as agree and acknowledge that such Person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2. Each Stockholder agrees that he, she or it shall not, and shall cause each of his, her or its termsAffiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of his, her or its Subject Shares as Parent may agree in writing in its sole discretion. Each Stockholder shall notify Parent as promptly as practicable (and in any event within 48 hours after receipt) in writing of the number of any additional shares of Company Common Stock or any other securities of the Company of which such Stockholder acquires beneficial or record ownership on or after the date hereof.
Appears in 3 contracts
Samples: Tender and Support Agreement (POINT Biopharma Global Inc.), Tender and Support Agreement (POINT Biopharma Global Inc.), Tender and Support Agreement (POINT Biopharma Global Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of such Stockholder’s obligations hereunder in any material respect, otherwise make any representation or warranty of such Stockholder herein untrue or incorrect, or have the effect of preventing or disabling such Stockholder from performing any of its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, (x) any Stockholder that is an individual may Transfer Subject Shares (i) to any member of such Stockholder’s immediate family, (ii) to a trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, or (iii) by will or under the laws of intestacy upon the death of such Stockholder and (y) any Stockholder may Transfer all or Subject Shares to any portion Affiliate (as defined in the Merger Agreement) of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), ; provided, that a in any such case, such Transfer described in this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon at the time of such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory transferee shall have executed and delivered to Parent (acting reasonably) and Purchaser a counterpart to accept this Agreement pursuant to which such Subject Shares subject to transferee shall be bound by all of the terms and provisions of this Agreement and to be bound by the terms of this Agreement as agree and acknowledge that such person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its termsSection 5.
Appears in 3 contracts
Samples: Tender and Support Agreement (Prevail Therapeutics Inc.), Tender and Support Agreement (Prevail Therapeutics Inc.), Tender and Support Agreement (Prevail Therapeutics Inc.)
No Transfer; No Inconsistent Arrangements. (a) 2.1 Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit not to exist any Encumbrance, other than Permitted Encumbrances, on Transfer any of such Stockholder’s Subject Covered Shares; provided, however, (iii) transferthat such Stockholder may, sell(a) if such Stockholder is an individual, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering Transfer any such Subject Covered Shares into to any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry into any derivative arrangement with respect to (collectively, “Transfer”), any members of such Stockholder’s Subject Sharesimmediate family, or to a trust solely for the benefit of such Stockholder or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer member of such Stockholder’s Subject Shares or any legal or beneficial interest thereinimmediate family, (ivb) grant or permit if such Stockholder is an individual, Transfer any Covered Shares by will, pursuant to the grant terms of any proxy, power-of-attorney revocable trust that becomes an irrevocable trust or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit or permit under the deposit laws of any intestacy upon the death of such Stockholder’s Subject , (c) if such Stockholder is Xxxxx X. Xxxxx, Xxx Capital Partners, LLLP, CGM Capital LLLP and Boca Xxxxxx 22, LLC, collectively Transfer up to one million five hundred thousand (1,500,000) of their Covered Shares, in the aggregate, to one or more charities, and (d) if such Stockholder is Xxxxx X. Xxxxxxxxx, Transfer up to twenty percent (20%) of his Covered Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation as of the immediately preceding sentence shall be null date hereof to the Mandarich Family Foundation, but in the case of the foregoing clauses (a) and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”b), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to of such Stockholder would be true and correct upon such Transfer (other than those set forth in Section 5.2 of this Agreement) and (y) the Permitted Transferee of such Subject Sharestransferees agree in writing, prior to the date of such Transfer, agrees in a signed writing form reasonably satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and Parent, to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) obligations set forth herein with respect to any such Covered Shares as if they were a Stockholder that is a legal Personhereunder, any whollywith Parent named as an express third-owned subsidiary party beneficiary of such Personagreements (any such Transfer, a “Permitted Transfer”); and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If if any involuntary Transfer of any of such Stockholder’s Subject Covered Shares in the Company shall occur (including, but not limited to, including a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Covered Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination the Expiration Time. Any action taken in violation of the immediately preceding sentence shall, to the fullest extent permitted by Law, be null and void ab initio. To the extent any Covered Shares are transferred to any family foundations of Xxxxx X. Xxxxx or Xxxxx X. Xxxxxxxxx in compliance with this Section 2.1, nothing contained herein will be deemed to require Xxxxx X. Xxxxx, any individual executing this Agreement on behalf of an entity holding Covered Shares or Xxxxx X. Xxxxxxxxx, in their capacities as directors or officers of such family foundations, to cause such family foundations to take or not take any actions with respect to such Transferred Covered Shares.
2.2 Each Stockholder hereby authorizes and instructs the Company to cause the Company’s transfer agent or other registrar to enter stop transfer instructions and implement stop transfer procedures with respect to all of the Covered Shares or other capital stock or any securities convertible into or exercisable or exchangeable for Covered Shares or other capital stock of the Company owned or held (of record or beneficially) by such Stockholder during the term of this Agreement. In the event that a Stockholder intends to undertake a Permitted Transfer during the term of this Agreement of any of the Covered Shares, such Stockholder shall provide prior notice thereof to the Company and Parent and shall authorize the Company to, or authorize the Company to instruct its transfer agent to, (i) lift any stop transfer order in accordance with respect of the Covered Shares to be so Transferred in order to effect such Permitted Transfer only upon receipt of certification by Parent and the Company that the written agreement to be entered into by the transferee agreeing to be bound by this Agreement pursuant to Section 2.1 hereof (if required pursuant to such Section 2.1) is satisfactory to Parent and (ii) re-enter any stop transfer order in respect of the Covered Shares to be so Transferred upon completion of the Permitted Transfer, except as to any Covered Shares that are Transferred pursuant to Section 2.1(i)(c) for which no stop transfer order shall be re-entered.
2.3 Each Stockholder shall not, directly or indirectly, take any action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect or have the effect of preventing, impairing or materially delaying such Stockholder from performing any of its termsobligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, impairing or materially delaying, the consummation of the Merger or the other Transactions or the performance by the Company of its obligations under the Merger Agreement.
Appears in 3 contracts
Samples: Voting and Support Agreement (Mizel Larry A), Merger Agreement (M.D.C. Holdings, Inc.), Voting and Support Agreement (Mandarich David D)
No Transfer; No Inconsistent Arrangements. Except as provided hereunder (aincluding pursuant to Section 1.1 or Section 4.1) Each Stockholder hereby agrees that, from and after or under the date hereof Merger Agreement and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrancespursuant to any applicable restrictions on transfer under the Securities Act, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholderthe Shareholder’s Equity Interests in the Company, including any Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholderthe Shareholder’s Equity Interests in the Company, including any Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Equity Interests, including the Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of the Shareholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of the Shareholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding initio and the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (Shareholder agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholderthe Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. During the term of this Agreement, the Shareholder agrees that it shall not, and shall cause each of its affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, the Shareholder may make Transfers of Subject Shares (a) to any affiliate of the Shareholder, in which case the Subject Shares shall continue to be bound by this Agreement and provided that any such transferee agrees in accordance with writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer; or (b) as Parent may otherwise agree in writing in its termssole discretion.
Appears in 3 contracts
Samples: Merger Agreement (Landauer Inc), Tender and Support Agreement (Fortive Corp), Tender and Support Agreement (Gilead Capital LP)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after Except pursuant to the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the express terms of this Agreement Agreement, such VC Shareholder shall not (and the Business Combination Agreementshall not permit any Person under such VC Shareholder’s control to), from and after without the date hereof and until prior written consent of the termination of this Agreement in accordance with its terms, such Stockholder shall notInvestor, directly or indirectly, (i) create grant any proxies, powers of attorney, rights of first offer or permit refusal or enter into any voting trust with respect to exist any Encumbrance, other than Permitted Encumbrances, on any of such StockholderVC Shareholder’s Subject Shares, (ii) transfer, sell (including short sell), assign, gifttransfer, hedgetender, distributepledge, pledge encumber, grant a participation interest in, hypothecate or otherwise dispose of (includingincluding by gift) (each, for the avoidance a “Transfer”) any of doubtsuch VC Shareholder’s Subject Shares, by depositing(iii) otherwise permit any Liens to be created on any of such VC Shareholder’s Subject Shares, submitting or otherwise tendering any such Subject Shares (iv) enter into any tender contract, agreement, option, instrument or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer arrangement or entry into any derivative arrangement understanding with respect to (collectively, “Transfer”)the direct or indirect Transfer of, any of such StockholderVC Shareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit take any other action that would restrict, limit or permit interfere in any material respect with the deposit of any performance of such StockholderVC Shareholder’s Subject Shares into a voting trust obligations hereunder or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoingtransactions contemplated hereby or, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” meansfollowing sentence, (a) with respect to otherwise make any Stockholder that is a legal Person, any wholly-owned subsidiary representation or warranty of such Person, and (b) with respect to VC Shareholder herein untrue or incorrect in any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersmaterial respect. If any involuntary Transfer of any of such StockholderVC Shareholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such StockholderVC Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such VC Shareholder’s Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement as a VC Shareholder for all purposes hereunder. Such VC Shareholder agrees that it shall not, and shall cause each of its controlled Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any equity interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Transaction Agreement, which shall continue . The VC Shareholder hereby authorizes the Investor to direct the Company to impose stop orders to prevent the Transfer of any of such VC Shareholder’s Subject Shares in full force and effect until valid termination violation of this Agreement in accordance with its termsAgreement.
Appears in 3 contracts
Samples: Tender and Support Agreement (Roche Holding LTD), Tender and Support Agreement (Foundation Medicine, Inc.), Tender and Support Agreement (Foundation Medicine, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termshereunder, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Share Encumbrance, other than Permitted Share Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer), including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract Contract, option or other agreement (including profit sharing agreement), arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, until the Termination Date, such Stockholder shall not, directly or indirectly, accept any tender offer or exchange offer that constitutes an Alternative Proposal and shall not tender any Subject Shares in accordance with its termsany such tender offer or exchange offer.
Appears in 3 contracts
Samples: Merger Agreement (EQT Corp), Tender and Support Agreement (EQT Corp), Tender and Support Agreement (Trans Energy Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of, and compliance with, such Stockholder’s obligations hereunder in any material respect, otherwise make any representation or warranty of such Stockholder herein untrue or incorrect, or have the effect of preventing or disabling such Stockholder from performing, and complying with, any of its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any each Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) Affiliate of such Stockholder or (y) to any charitable organization; provided that, in each case, such Transfer shall be permitted only if all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon at the time of such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory transferee shall have executed and delivered to Parent (acting reasonably) and Merger Sub a counterpart to accept this Agreement pursuant to which such Subject Shares subject to transferee shall be bound by all of the terms and provisions of this Agreement and to be bound by the terms of this Agreement as agree and acknowledge that such Person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2. Each Stockholder agrees that it shall not, and shall cause each of its termsAffiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Parent may agree in writing in its sole discretion. Each Stockholder shall notify Parent as promptly as reasonably practicable (and in any event within 48 hours after receipt) in writing of the number of any additional shares of Company Common Stock or any other securities of the Company of which such Stockholder acquires beneficial or record ownership on or after the date hereof.
Appears in 3 contracts
Samples: Tender and Support Agreement (Morphic Holding, Inc.), Tender and Support Agreement (Morphic Holding, Inc.), Tender and Support Agreement (Morphic Holding, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the compliance with such Stockholder’s obligations hereunder in any material respect, otherwise make any representation or warranty of such Stockholder herein untrue or incorrect, or have the effect of preventing or disabling such Stockholder from complying with any of its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, (x) any Stockholder that is an individual may Transfer Subject Shares (i) to any member of such Stockholder’s immediate family, (ii) to a trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, or (iii) by will or under the laws of intestacy upon the death of such Stockholder and (y) any Stockholder may Transfer all or Subject Shares to any portion Affiliate (as defined in the Merger Agreement) of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (; provided that in any such case, such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon at the time of such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory transferee shall have executed and delivered to Parent (acting reasonably) and Purchaser a counterpart to accept this Agreement pursuant to which such Subject Shares subject to transferee shall be bound by all of the terms and provisions of this Agreement and to be bound by the terms of this Agreement as agree and acknowledge that such Person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its termsSection 5.
Appears in 3 contracts
Samples: Tender and Support Agreement (Akouos, Inc.), Tender and Support Agreement (Akouos, Inc.), Tender and Support Agreement (Akouos, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from From and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer terminated in accordance with the terms of this Agreement and the Business Combination Agreement)Section 5.2, from and after the date hereof and until the termination of this Agreement in accordance with its terms, such no Stockholder shall notshall, directly or indirectly, (i) grant or create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any or all of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, tender, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right right, title or interest therein (including any right or power to vote to which such Stockholder may be entitled) (or consent to any of the foregoing), (iii) enter into (or caused to be entered into) any Contract contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest thereinShares, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any of such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement similar arrangement, commitment or understanding with respect to any of such Stockholder’s Subject SharesShares or (vi) take or permit any other action that would reasonably be expected to prevent or materially restrict, disable or delay the consummation by the P2 Parties of the transactions contemplated by this Agreement or otherwise adversely impact the P2 Parties’ ability to perform its obligations hereunder in any material respect. Notwithstanding the foregoing, (x) direct or indirect Transfers of equity or other interests in each of the P2 Parties by its equityholders is not prohibited by this Section 4.1 and (y) each of the P2 Parties may make Transfers of Subject Shares as Parent may, in its sole discretion, agree in writing. Any action taken Transfer in violation of the immediately preceding sentence this Section 4.1 shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement is terminated in accordance with its termsSection 5.2.
Appears in 3 contracts
Samples: Merger Agreement (Blackhawk Network Holdings, Inc), Voting and Support Agreement (Silver Lake Group, L.L.C.), Voting and Support Agreement (P2 Capital Partners, LLC)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after Except pursuant to the date hereof and until express terms of this Agreement is terminatedAgreement, such Stockholder shall not, directly or indirectly, take not (and shall not permit any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations Person under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreementcontrol to), from and after without the date hereof and until the termination prior written consent of this Agreement in accordance with its terms, such Stockholder shall notParent, directly or indirectly, (i) create grant any proxies, powers of attorney, rights of first offer or permit refusal or enter into any voting trust with respect to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell (including short sell), assign, gifttransfer, hedgetender, distributepledge, pledge encumber, grant a participation interest in, hypothecate or otherwise dispose of (includingincluding by gift, for the avoidance of doubtand whether by merger, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer offer, by testamentary disposition, by operation of law or otherwise, and including pursuant to a derivative transaction or through the Transfer by any other than Person of any equity interests in any direct or indirect holding company holding Subject Shares or through the Offer andissuance and redemption by any such holding company of its securities) or consent to any of the foregoing (each, including, for the avoidance of doubt, any transfer or entry into any derivative arrangement with respect to (collectively, a “Transfer”), or cause to be Transferred, any of such Stockholder’s Subject Shares, or (iii) otherwise permit any right or interest therein (or consent Liens to be created on any of the foregoing)such Stockholder’s Subject Shares, (iiiiv) enter into any Contract with respect to any the direct or indirect Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of any of such Stockholder’s the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s the Subject Shares. Any action taken in violation Shares or grant any proxy or power of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoingattorney, any Stockholder may Transfer all or any portion of other authorization or consent, with respect thereto that is inconsistent with this Agreement. Such Stockholder hereby agrees that this Agreement and the obligations hereunder shall attach to such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only binding upon any Person to which legal or Beneficial Ownership shall pass, whether by operation of law or otherwise including its successors or permitted assigns and if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, including a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Stockholder’s Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement as a Stockholder for all purposes hereunder. Such Stockholder agrees that it shall not, and shall cause each of its controlled Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any equity interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement, which shall continue . Each Stockholder hereby agrees not to request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any or all of the Subject Shares and each Stockholder authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any of such Stockholder’s Subject Shares in full force and effect until valid termination violation of this Agreement in accordance with its termsAgreement.
Appears in 3 contracts
Samples: Tender and Support Agreement (Tyson Foods Inc), Tender and Support Agreement (Tyson Foods Inc), Tender and Support Agreement (AdvancePierre Foods Holdings, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, (f) take or permit any other action that would reasonably be expected to prevent or materially delay or materially impair such Stockholder’s ability to timely perform its obligations or the consummation by such Stockholder of the transactions contemplated by this Agreement, or (g) take or permit any other action that would otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any each Stockholder may Transfer all or Subject Shares to (i) any portion Affiliate of such Stockholder’s Subject Shares ; (ii) to a Permitted Transferee any charitable foundation or organization, including donor advised funds; or (as defined belowiii) (to the extent required by any non-consensual Judgement, by divorce decree or by will, intestacy or other similar applicable Law; provided, in each case, that such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon at the time of such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory transferee shall have executed and delivered to Parent (acting reasonably) and Merger Sub a counterpart to accept this Agreement pursuant to which such Subject Shares subject to transferee shall be bound by all of the terms and provisions of this Agreement and to be bound by the terms of this Agreement as agree and acknowledge that such Person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2. Each Stockholder agrees that he, she or it shall not, and shall cause each of his, her or its termsAffiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of his, her or its Subject Shares as Parent may agree in writing in its sole discretion.
Appears in 3 contracts
Samples: Tender and Support Agreement (Zeff Capital, LP), Tender and Support Agreement (TSR Inc), Tender and Support Agreement (TSR Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Merger Agreement or the performance by the Company of its obligations under the Business Combination Merger Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares in connection with any Transfer not involving or relating to any Acquisition Proposal, to (i) if an entity, any wholly-owned Subsidiary or affiliate of such Stockholder or (ii) if a Permitted Transferee natural person, (as defined belowA) immediate family members or a trust established for the benefit of such Stockholder and/or for the benefit of one or more members of such Stockholder’s immediate family, (B) charitable organizations or (C) upon the death of such Stockholder, (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d4.1(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.
(c) Such Stockholder agrees that it shall not, and shall cause each of its controlled affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement.
(d) Notwithstanding Section 4.1(b), such Stockholder may make Transfers of such Stockholder’s Subject Shares as Parent may agree in writing in its sole discretion.
Appears in 3 contracts
Samples: Merger Agreement (Tesla, Inc.), Tender and Support Agreement (Tesla, Inc.), Tender and Support Agreement (Maxwell Technologies Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Merger Agreement or the performance by the Company of its obligations under the Business Combination Merger Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsis terminated, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer “Transfer” (for this purpose, as defined in the Amended and Restated Certificate of Incorporation of the Company (the “Charter”)) or entry other action that would cause or result in the conversion of a share of Class B Common Stock into a share of Class A Common Stock pursuant to Section IV.D.3(a), (b) or (d) or (e) of the Charter), or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) in the Charter), but solely if and to the extent that such Transfer would not result in the conversion under the Charter of such Subject Shares that are shares of Class B Common Stock into Class A Common Stock (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d4.1(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.
(c) Unless and until this Agreement shall have been validly terminated in accordance with Section 5.2, such Stockholder agrees that it shall not, and shall cause each of its controlled affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement.
(d) Notwithstanding Section 4.1(b), such Stockholder may make Transfers of such Stockholder’s Subject Shares as Parent may agree in writing in its sole discretion.
Appears in 2 contracts
Samples: Merger Agreement (Salesforce Com Inc), Tender and Support Agreement (Salesforce Com Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of such Stockholder’s obligations hereunder in any material respect, otherwise make any representation or warranty of such Stockholder herein untrue or incorrect, or have the effect of preventing or disabling such Stockholder from performing any of its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any Stockholder each stockholder may Transfer all or Subject Shares to any portion affiliate (as defined in the Merger Agreement) of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), ; provided, that a such Transfer described in this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon at the time of such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory transferee shall have executed and delivered to Parent (acting reasonably) and Merger Sub a counterpart to accept this Agreement pursuant to which such Subject Shares subject to transferee shall be bound by all of the terms and provisions of this Agreement and to be bound by the terms of this Agreement as agree and acknowledge that such person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.purchaser
Appears in 2 contracts
Samples: Tender and Support Agreement (Dermira, Inc.), Tender and Support Agreement (Dermira, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after From the date hereof and until of this Agreement is terminateduntil 6:00 a.m. Eastern Time on the day following the record date set by the Company’s Board to determine the shares entitled to vote at the Company Stockholder Meeting, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under other than pursuant to this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairingAgreement, the consummation of the OfferMerger Agreement, the Merger or the other transactions contemplated by the Business Combination this Agreement or the performance by Merger Agreement (the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement“Transactions”), from no Holder shall, and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Holder shall not, directly not permit any other Person acting at such Holder’s direction or indirectly, on such Holder’s behalf to:
(i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, transfer, tender, exchange, offer, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”)to, any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing) (each, a “Transfer”), other than Permitted Transfers;
(ii) create any lien, claim, pledge, grant, hypothecation, obligation, option, charge, proxy, voting trust or other encumbrance or restriction on title, transfer or exercise of any rights of a Holder in respect of such Shares (“Lien”) on the Shares, except Liens arising under or pursuant to, or imposed by, applicable Law, this Agreement, the Merger Agreement, the Transactions, any Company Compensatory Awards, any employee benefit plan of the Company, any restrictions under applicable federal or state securities laws, or security interests or other encumbrances incurred in connection with standard margin account arrangements) (“Permitted Liens”);
(iii) deposit any Shares into a voting trust, or enter into a voting agreement or similar arrangement, or grant or permit the grant of any proxy, power of attorney or other authorization or consent in, or with respect to, the Shares; or
(iv) enter into any Contract with respect to any Transfer or Lien prohibited by this Section 1. Notwithstanding the foregoing, a Holder may: Transfer Shares (w) in connection with the exercise, vesting or settlement of Company Compensatory Awards (including the net settlement of such Stockholder’s Subject Shares equity or sale of underlying shares of Company Common Stock in order to pay any exercise price and any tax withholding obligations in connection therewith), (x) to any Affiliate, Subsidiary, partner or member of the Holder or to a trust established for the benefit of the Holder or any legal or beneficial interest thereinof its Affiliates, (ivy) grant if such Holder is an individual, (i) to any member of such Xxxxxx’s immediate family or permit any member of such Xxxxxx’s immediate family or (ii) to any person or entity if and to the grant of extent required by any proxynon-consensual legal order, power-of-attorney by divorce decree or by will, intestacy or other authorization similar law (provided, however, that in case of the foregoing clauses (x) and (y)(i), as a condition to such Transfer, the recipient agrees in writing to be bound by this Agreement and delivers a copy of such executed written agreement to Parent prior to the consummation of such Transfer); or (z) with Parent’s prior written consent (such exceptions set forth in clauses (w) through (z), a “Permitted Transfer”). Nothing in this Agreement shall prohibit direct or indirect Transfers of equity or other interests in a Holder. Any action with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence this Section 1 shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.
Appears in 2 contracts
Samples: Support Agreement (Engine Capital, L.P.), Support Agreement (Hill International, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Transaction Agreement, from and after the date hereof and until this Agreement is terminatedvalidly terminated in accordance with Section 5.2, such Stockholder shall not, directly or indirectly, take any action that would have without the effect prior written consent of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectlyParent, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, Company Stock Options or Company RSU Awards, (iib) transfer, sell, assign, gift, hedge, distributelend, pledge or otherwise dispose of (including, for the avoidance of doubtincluding by sale or merger, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer, includingby testamentary disposition, for the avoidance by liquidation or dissolution, by dividend or distribution, by operation of doubtLaw or otherwise), any transfer either voluntarily or entry involuntarily, or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, Company Stock Options or Company RSU Awards, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares Shares, Company Stock Options or Company RSU Awards, or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares Shares, Company Stock Options or Company RSU Awards (vother than in connection with the exercise of voting rights at a general meeting of shareholders of the Company, provided such exercise does not result in a breach of Section 1.2), (e) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, (f) enter into any Contract that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect as though made on the date of such Contract or (g) approve or consent to any of the forgoing. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Shares, Company Stock Options or Company RSU Awards shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares Shares, Company Stock Options or Company RSU Awards, as applicable, subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2. Notwithstanding the foregoing, (x) such Stockholder may make Transfers of its termsSubject Shares, Company Stock Options or Company RSU Awards as Parent may agree in writing, such agreement not to be unreasonably withheld, conditioned or delayed, subject to the terms and conditions contained in the applicable Company Stock Plan, Company Restricted Share Purchase Agreement and/or award agreement evidencing such Company Stock Options or Company RSU Awards (collectively, a “Company Plan”) and (y) such Stockholder may Transfer Subject Shares, Company Stock Options or Company RSU Awards (and any Shares underlying such Company Stock Options or Company RSU Awards) (i) to a trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, (ii) by will or under the Laws of intestacy upon the death of such Stockholder, (iii) for estate planning purposes, (iv) by effecting a “net exercise” or “net settlement” of a Company Stock Option or Company RSU Award in which the Company holds back Shares otherwise issuable (but not in the sale of already owned Shares) either to pay the exercise price upon the exercise of a Company Stock Option or to satisfy the Stockholder’s tax withholding obligation upon the exercise, vesting and/or settlement of a Company Stock Option, Company RSU Award or Company Restricted Share, in each case as permitted pursuant to the terms of any Company Plan, (v) to any investment fund or other entity controlled or managed by the Stockholder or the investment adviser or general partner of the Stockholder, or an entity under common control or management with the Stockholder (in each case, directly or indirectly), or (vi) in the case of a Stockholder who is not a natural person, by pro rata distributions from the Stockholder to its members, partners, or shareholders pursuant to the Stockholder’s organizational documents; provided, that the transferee of the Transfer referred to in clauses (x) or (y)(i)-(vi) shall have, prior to any such Transfer, executed and delivered to Parent a counterpart to this Agreement pursuant to which such transferee shall be bound by all of the terms and provisions of this Agreement and agree and acknowledge that such Person shall constitute a “Stockholder” for all purposes of this Agreement. Nothing herein will restrict the ability of Stockholder to exercise any Company Stock Options.
Appears in 2 contracts
Samples: Transaction Agreement (VectivBio Holding AG), Tender and Support Agreement (Ironwood Pharmaceuticals Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after From the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and until the Business Combination AgreementExpiration Time (as defined below), from and after other than pursuant to this Agreement, the date hereof and until Merger Agreement or the termination of transactions contemplated by this Agreement in accordance with its termsor the Merger Agreement (the “Transactions”), no Holder shall, and such Stockholder Holder shall not, directly not permit any other Person acting at such Holder’s direction or indirectly, on such Holder’s behalf to:
(i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, transfer, tender, exchange, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectivelyeach, a “Transfer”), ) any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), other than Permitted Transfers (as defined below);
(ii) create any lien, claim, pledge, grant, hypothecation, obligation, option, charge, proxy, voting trust or other encumbrance or restriction on title, transfer or exercise of any rights of a Holder in respect of such Shares (“Lien”) on the Shares, except Liens (A) arising under or pursuant to, or imposed by, applicable Legal Requirements, this Agreement, the Merger Agreement, the Transactions, (B) securing indebtedness of the Holder, which Liens, upon or prior to Transfer of the Shares in accordance with the terms of this Agreement, will be released, or (C) Liens arising in connection with any Permitted Transfers (“Permitted Liens”);
(iii) deposit of any Shares into a voting trust, or enter into a voting agreement or similar arrangement, or grant or permit the grant of any proxy, power of attorney or other authorization or consent in, or with respect to, the Shares;
(iv) enter into any Contract with respect to any Transfer or Lien prohibited by this Section 1; or
(v) take any other action that would prevent the performance of such StockholderHolder’s Subject obligations hereunder in any material respect. Notwithstanding the foregoing, a Holder may: (x) Transfer Shares to Affiliates or to a trust established for the benefit of the Holder or any legal of its Affiliates if, as a condition to such Transfer, the recipient agrees in writing to be bound by this Agreement and delivers a copy of such executed written agreement to Parent prior to the consummation of such Transfer; or beneficial interest therein(y) Transfer Shares with Parent’s prior written consent (such exceptions set forth in clauses (x) and (y), (iv) grant a “Permitted Transfer”). Nothing in this Agreement shall prohibit direct or permit the grant indirect Transfers of any proxy, power-of-attorney equity or other authorization or consent interests in or a Holder. Any action with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence this Section 1 shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.
Appears in 2 contracts
Samples: Merger Agreement (Smart & Final Stores, Inc.), Tender and Support Agreement (First Street Merger Sub, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly direct or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution), or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract Contract, option or other agreement, arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal right or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject SharesShares or (vi) take or permit any of their respective Representatives to take other action that would in any way materially restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initioinitio and such Stockholder agrees that any such prohibited action may and should be enjoined. Notwithstanding In furtherance of this Agreement, concurrently herewith, each Stockholder shall, and hereby authorizes the foregoingCompany and its counsel to, any Stockholder may Transfer notify the Company’s transfer agent that, from the date hereof until the termination of this Agreement, and subject to the last sentence of this Section 3.01, there is a stop transfer order with respect to all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true places limits on the voting and correct upon such Transfer and (y) the Permitted Transferee transfer of such Subject Shares, in each case, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes termination of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any or all of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited toif applicable, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser Merger Sub at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of or the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding the foregoing, any Stockholder may Transfer Subject Shares to one or more partners or members of such Stockholder or to an affiliated entity under common control with such Stockholder or to any trustee or beneficiary of the trust or pursuant to a Transfer by will, operation of law or for estate planning purposes, provided, that such a Transfer shall be permitted only if, as a precondition, the transferee of such Subject Shares agrees in writing, to accept such Subject Shares subject to the terms of this Agreement in accordance with its termsand to be bound by the terms of this Agreement and to agree and acknowledge that such person shall constitute a Stockholder for all purposes of this Agreement (each, a “Permitted Transfer”).
Appears in 2 contracts
Samples: Tender and Support Agreement (RhythmOne PLC), Tender and Support Agreement (YuMe Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from From and after the date hereof and until this Agreement agreement is terminatedterminated in accordance with section 5.2, subject to section 3.1(b), such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, not (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on Transfer (as defined below) any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiiii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iviii) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any of such Stockholder’s Subject Shares or Shares, (viv) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (v) take or permit any other action that would reasonably be expected to in any way restrict, limit, interfere with or delay the performance of such Stockholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initioinitio and such Stockholder agrees that any such prohibited action may and should be enjoined. Notwithstanding the foregoing, If any Stockholder may involuntary Transfer of any or all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee occurs, the transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(dsubsequent transferees) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all and subsequent transferees of the representations initial transferee) must take and warranties hold such Shares in this Agreement accordance with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement agreement.
(b) Notwithstanding the foregoing section 3.1(a), such Stockholder may make Transfers of Shares (i) to any Permitted Transferee, in which case the Shares shall continue to be bound by this agreement and provided that any such Permitted Transferee agrees in writing to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) agreement with respect to such Shares that are subject to such Transfer prior to the consummation of any Stockholder that is a legal Personsuch Transfer, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, or (ii) such Stockholder’s estate upon as Parent may otherwise agree in writing in its reasonable discretion. Any action taken in violation of the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, foregoing sentence shall be null and void ab initio and such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes agrees that any such prohibited action may and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its termsshould be enjoined.
Appears in 2 contracts
Samples: Tender and Support Agreement (Vmware, Inc.), Tender and Support Agreement (Carbon Black, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of, and compliance with, such Stockholder’s obligations hereunder in any material respect, otherwise make any representation or warranty of such Stockholder herein untrue or incorrect, or have the effect of preventing or disabling such Stockholder from performing, and complying with, any of its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any each Stockholder may Transfer all or Subject Shares to: (i) any portion Affiliate of such Stockholder’s Subject Shares Stockholder or (ii) to a Permitted Transferee any investment fund or other entity controlled or managed by such Stockholder or by the investment adviser or general partner of such Stockholder or an entity under common control or management with the Stockholder (as defined below) (any in each case, directly or indirectly); provided that such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon at the time of such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory transferee shall have executed and delivered to Parent (acting reasonably) and Merger Sub a counterpart to accept this Agreement pursuant to which such Subject Shares subject to transferee shall be bound by all of the terms and provisions of this Agreement and to be bound by the terms of this Agreement as agree and acknowledge that such Person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2. Notwithstanding the foregoing, such Stockholder may make Transfers of its termsSubject Shares as Parent may agree in writing in its sole discretion. Each Stockholder shall notify Parent as promptly as practicable (and in any event within 48 hours after receipt) in writing of the number of any additional shares of Company Common Stock of which such Stockholder acquires beneficial or record ownership on or after the date hereof, including as a result of the exercise or settlement, as applicable, of any Company Stock Option, Company RSU or Company Warrant.
Appears in 2 contracts
Samples: Tender and Support Agreement (Alpine Immune Sciences, Inc.), Tender and Support Agreement (Alpine Immune Sciences, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Merger Agreement or the performance by the Company of its obligations under the Business Combination Merger Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsis terminated, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer “Transfer” (for this purpose, as defined in the Amended and Restated Certificate of Incorporation of the Company (the “Charter”)) or entry other action that would cause or result in the conversion of a share of Class B Common Stock into a share of Class A Common Stock pursuant to Section IV.D.3(a), (b) or (d) or (e) of the Charter), or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, (A) any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined belowin the Charter), but solely if and to the extent that such Transfer would not result in the conversion under the Charter of such Subject Shares that are shares of Class B Common Stock into Class A Common Stock, and (B) any Stockholder may Transfer not more than 750,000 of such Stockholder’s Subject Shares in one or more charitable contributions, but solely if and to the extent that such Transfer occurs not more than 10 business days prior to the initial expiration of the Offer (any such Transfer described in clauses (A) or (B) above and any Transfer as Parent may agree pursuant to Section 4.01(d4.1(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.
(c) Unless and until this Agreement shall have been validly terminated in accordance with Section 5.2, such Stockholder agrees that it shall not, and shall cause each of its controlled affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement.
(d) Notwithstanding Section 4.1(b), such Stockholder may make Transfers of such Stockholder’s Subject Shares as Parent may agree in writing in its sole discretion.
Appears in 2 contracts
Samples: Merger Agreement (Salesforce Com Inc), Tender and Support Agreement (Salesforce Com Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes including pursuant to Section 1.1) or under the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any or all of such StockholderShareholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such StockholderShareholder’s Equity Interests in the Company, including any Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of any or all of such StockholderShareholder’s Subject Shares Shares, or any legal right or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any or all of such StockholderShareholder’s Subject Shares or Shares, (v) except for voting trusts, voting agreements or arrangements existing on the date hereof and set forth on Schedule 4.1 hereto, deposit or permit the deposit of any or all of such StockholderShareholder’s Equity Interests in the Company, including any Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of Equity Interests, including the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior or (vi) knowingly take any other action that would reasonably be expected to restrict, limit or interfere with the date performance of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to Shareholder’s obligations hereunder or the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family memberstransactions contemplated hereby. If any involuntary Transfer of any or all of such StockholderShareholder’s Subject Shares in the Company shall occur (including, but not limited toif applicable, a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Shareholder agrees that it shall not, other than as may result from the execution of this Agreement, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Shareholder may make Transfers of Subject Shares (a) to any “Permitted Transferee” (as defined below), in which case the Subject Shares shall continue to be bound by this Agreement and provided that any such Permitted Transferee agrees in accordance writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer;; or (b) as Parent may otherwise agree in writing in its sole discretion. A “Permitted Transferee” means, with its termsrespect to any Shareholder, (i) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild, or the spouse of any child, adopted child, grandchild, or adopted grandchild of such Shareholder, (ii) any charitable organization described in Section 170(c) of the Code, (iii) any trust, the beneficiaries of which include only the Persons named in clause (i) or (ii) of this definition, (iv) any corporation, limited liability company, or partnership, the Shareholders, members, and general or limited partners of which include only the Persons named in clause (i) or (ii) of this definition, or (v) if such Shareholder is a partnership or limited liability company, one or more partners or members of such Shareholder or an affiliated corporation under common control with such Shareholder.
Appears in 2 contracts
Samples: Voting Agreement (Lexmark International Inc /Ky/), Voting Agreement (Kofax LTD)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of such Stockholder’s obligations hereunder in any material respect, otherwise make any representation or warranty of such Stockholder herein untrue or incorrect, or have the effect of preventing or disabling such Stockholder from performing any of its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any Stockholder each stockholder may Transfer all or Subject Shares to any portion Affiliate of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), ; provided, that a such Transfer described in this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon at the time of such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory transferee shall have executed and delivered to Parent (acting reasonably) and Merger Sub a counterpart to accept this Agreement pursuant to which such Subject Shares subject to transferee shall be bound by all of the terms and provisions of this Agreement and to be bound by the terms of this Agreement as agree and acknowledge that such Person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2. Each Stockholder agrees that it shall not, and shall cause each of its termsAffiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Parent may agree in writing in its sole discretion. Each Stockholder shall notify Parent as promptly as practicable (and in any event within 48 hours after receipt) in writing of the number of any additional shares of Company Common Stock of which such Stockholder acquires beneficial or record ownership on or after the date hereof.
Appears in 2 contracts
Samples: Tender and Support Agreement (DICE Therapeutics, Inc.), Tender and Support Agreement (DICE Therapeutics, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or Subject Shares (i) to any portion member of such Stockholder’s Subject Shares immediate family, (ii) to a Permitted Transferee charitable organization, (as defined belowiii) to a trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, or (any iv) by will or under the laws of intestacy upon the death of such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), Stockholder; provided, that a Transfer described transfer referred to in clause (i) through (iv) of this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, transferee agrees in writing, in a signed writing satisfactory manner reasonably acceptable to Parent (acting reasonably) Parent, to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as and to agree and acknowledge that such Person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Parent may agree in accordance with writing in its termssole discretion. Each Stockholder shall notify Parent as promptly as practicable (and in any event within 48 hours after receipt) in writing of the number of any additional shares of Common Stock of which such Stockholder acquires beneficial or record ownership on or after the date hereof.
Appears in 2 contracts
Samples: Tender and Support Agreement (Actavis PLC), Tender and Support Agreement (Durata Therapeutics, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder (including pursuant to Section 1.1 or Section 4.1) or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distributemortgage, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholder’s Equity Interests in the Company, including any Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Equity Interests in the Company, including any Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Equity Interests in the Company, including the Subject Shares or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect; provided, that the restrictions contained in this Section 4.2 shall not apply to any with respect to any transfer of the Subject Shares by a Stockholder pursuant to applicable Laws of descent and distribution; provided, further, that any such proposed transferee must agree in writing to take such Subject Shares subject to and to be bound by the terms and conditions of this Agreement applicable to such Subject Shares. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares (a) to any wholly-owned Subsidiary of such Stockholder, in which case the Subject Shares shall continue to be bound by this Agreement (provided, that any such transferee agrees in writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer) or (b) as Parent may agree in writing in its sole discretion. If so requested by Parent, such Stockholder agrees that the Subject Shares shall bear a legend stating that such Subject Shares are subject to this Agreement (provided, such legend shall be removed upon the valid termination of this Agreement).
(b) At all times until the Expiration Date, in furtherance of this Agreement, such Stockholder shall, and hereby does authorize and instruct the Company or its counsel to notify the Company’s transfer agent that, from the date hereof until the Expiration Date, there is a stop transfer order with respect to all of the Subject Shares of such Stockholder (and that this Agreement places limits on the voting and transfer of such Shares until the Expiration Date); provided, however, that (i) if the Offer shall have been terminated in accordance with the terms of the Merger Agreement, (ii) if the Merger Agreement is terminated, pursuant to its terms, prior to the purchase of the Subject Shares in the Offer, (iii) if the Company Board shall have made an Adverse Recommendation change (solely in connection with a Competing Proposal), (iv) if this Agreement shall have been terminated in accordance with its termsterms or (v) immediately following the Closing (and in any event within such time as would not delay receipt by the Stockholders of the Merger Consideration), the foregoing authorization and instruction shall be null and void and shall have no further force or effect.
Appears in 2 contracts
Samples: Tender and Support Agreement (PLX Technology Inc), Tender and Support Agreement (PLX Technology Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such StockholderShareholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution), or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderShareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract Contract, option or other agreement, arrangement or understanding with respect to any Transfer of such StockholderShareholder’s Subject Shares or any legal right or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such StockholderShareholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such StockholderShareholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such StockholderShareholder’s Subject SharesShares or (vi) take or permit any of their respective Representatives to take other action that would in any way restrict, limit or interfere with the performance of such Shareholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Shareholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initioinitio and such Shareholder agrees that any such prohibited action may and should be enjoined. Notwithstanding In furtherance of this Agreement, concurrently herewith, each Shareholder shall, and hereby authorizes Parent, Purchaser, the foregoingCompany and their respective counsel to, any Stockholder may Transfer notify the Company’s transfer agent that there is a stop transfer order with respect to all or any portion of such StockholderShareholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true places limits on the voting and correct upon such Transfer and (y) the Permitted Transferee transfer of such Subject Shares, in each case, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes valid termination of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any or all of such StockholderShareholder’s Subject Shares in the Company shall occur (including, but not limited toif applicable, a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of or the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until the valid termination of this Agreement. Notwithstanding the foregoing, (x) if such Shareholder is an individual, such Shareholder may Transfer Subject Shares (i) to any member of such Shareholder’s immediate family or (ii) to a trust for the sole benefit of such Shareholder or any member of such Shareholder’s immediate family, the sole trustees of which are such Shareholder or any member of such Shareholder’s immediate family or and (y) if such Shareholder is an entity, such Shareholder may Transfer Subject Shares to one or more partners or members of such Shareholder or to an affiliated entity under common control with such Shareholder or to any trustee or beneficiary of such trust (in the case where such Shareholder is a trust), provided, that such a Transfer shall be permitted only if, as a precondition, the transferee of such Subject Shares agrees in writing, to accept such Subject Shares subject to the terms of this Agreement in accordance with its termsand to be bound by the terms of this Agreement and to agree and acknowledge that such person shall constitute a Shareholder for all purposes of this Agreement.
Appears in 2 contracts
Samples: Tender and Support Agreement (Duravant LLC), Tender and Support Agreement
No Transfer; No Inconsistent Arrangements. Except as provided hereunder (aincluding pursuant to Section 1.1 or Section 4.1) Each Stockholder hereby agrees thator under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholder’s Equity Interests in the Company, including any Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Equity Interests in the Company, including any Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Equity Interests in the Company, including the Subject Shares or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect, provided that the restrictions contained in this Section 4.2 shall not apply to any with respect to any transfer of the Subject Shares by a Stockholder pursuant to applicable Laws of descent and distribution, and provided, further that any such proposed transferee must agree in writing to take such Subject Shares subject to and to be bound by the terms and conditions of this Agreement applicable to such Subject Shares. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares (a) to any wholly-owned Subsidiary of such Stockholder, in which case the Subject Shares shall continue to be bound by this Agreement and provided that any such transferee agrees in accordance with writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer or (b) as Parent may agree in writing in its termssole discretion. If so requested by Parent, such Stockholder agrees that the Subject Shares shall bear a legend stating that such Subject Shares are subject to this Agreement, provided such legend shall be removed upon the valid termination of this Agreement.
Appears in 2 contracts
Samples: Tender and Support Agreement (Integrated Device Technology Inc), Tender and Support Agreement (PLX Technology Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided for in Section 4 and Section 6, no Restricted Party shall, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly the Effective Time or indirectly, take any action that would have the effect earlier termination of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this the Merger Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination this Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (iia) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Covered Shares into any tender or exchange offer other than the Offer andoffer), including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderRestricted Party’s Subject Covered Shares, or any right or interest therein (or consent to any of the foregoing), (iiib) enter into any Contract Contract, option or other agreement, arrangement or understanding with respect to any Transfer of such StockholderRestricted Party’s Subject Covered Shares or any legal or beneficial interest therein, (ivc) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such StockholderRestricted Party’s Subject Shares Covered Shares, or (vd) deposit or permit the deposit of any of such Stockholderthe Restricted Party’s Subject Covered Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such StockholderRestricted Party’s Subject Covered Shares, in each case under this Section 5 in a manner that would adversely affect the ability of such Restricted Party to perform its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholdereach Restricted Party’s Subject Shares in the Company Covered Shares, as applicable, shall occur before the Effective Time (including, but not limited to, including a sale by such Stockholdereach Restricted Party’s (as applicable) trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall), subject to the extent permitted by applicable Law, shall take and hold such Subject Covered Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its termsAgreement.
Appears in 2 contracts
Samples: Merger Agreement (Landos Biopharma, Inc.), Voting Agreement (Landos Biopharma, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Purchase Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted Encumbrancesany Lien created by this Agreement or any restriction on transfer under any applicable securities law, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry into any derivative arrangement with respect to (collectively, “Transfer”), ) any of such Stockholder’s Subject Shares, (c) grant any proxy or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract power-of-attorney with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest thereinShares, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (vd) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any , or (f) take any other action taken in violation that would interfere with the performance of the immediately preceding sentence shall be null and void ab initiosuch Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Notwithstanding the foregoing, any Stockholder may Transfer all or Subject Shares (i) to any portion member of such Stockholder’s Subject Shares immediate family, (ii) to a Permitted Transferee charitable organization, (as defined belowiii) to a trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, or (any iv) by will or under the laws of intestacy upon the death of such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), Stockholder; provided, that a Transfer described transfer referred to in clause (i) through (iv) of this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, transferee agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as and to agree and acknowledge that such transferee shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Private Company may agree in accordance with writing in its termssole discretion.
Appears in 2 contracts
Samples: Support Agreement (Dare Bioscience, Inc.), Support Agreement (Cerulean Pharma Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termshereunder, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Share Encumbrance, other than Permitted Share Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer), including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract Contract, option or other agreement (including profit sharing agreement), arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, until the Termination Date, such Stockholder shall not, directly or indirectly, accept any tender offer or exchange offer that constitutes an Alternative Transaction Proposal and shall not tender any Subject Shares in accordance with its termsany such tender offer or exchange offer.
Appears in 2 contracts
Samples: Tender and Support Agreement (Carlyle Group L.P.), Tender and Support Agreement (Goergen Robert B)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject SharesShares or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or Subject Shares (i) to any portion member of such Stockholder’s Subject Shares immediate family, (ii) to a Permitted Transferee charitable organization, (as defined belowiii) to a trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family or (any iv) by will or under the laws of intestacy upon the death of such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, Stockholder; provided that a Transfer described transfer referred to in clause (i) through (iv) of this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, transferee agrees in writing, in a signed writing satisfactory manner reasonably acceptable to Parent (acting reasonably) Parent, to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as and to agree and acknowledge that such Person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, including a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Parent may agree in accordance writing in its sole discretion.
(b) Such Stockholder agrees that it shall not, and shall cause each of its affiliates not to, become a member of a “group” (as that term is used in Section 13(d) of the Exchange Act) that it is not currently a part of and that has been disclosed in a filing on Schedule 13D prior to the date hereof (other than as a result of entering into this Agreement) with its termsrespect to any Subject Shares, warrants or any other voting securities of the Company for the purpose of opposing or competing with the transactions contemplated by the Merger Agreement.
Appears in 2 contracts
Samples: Tender and Support Agreement (Castle Brands Inc), Tender and Support Agreement
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), or (iiic) enter into take or permit any Contract other action that would in any way restrict, limit, impede, delay or interfere with respect to any Transfer of the performance of, and compliance with, such Stockholder’s Subject Shares obligations hereunder in any material respect, otherwise make any representation or any legal warranty of such Stockholder herein untrue or beneficial interest thereinincorrect, (iv) grant or permit have the grant effect of any proxypreventing or disabling such Stockholder from performing, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of and complying with, any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of its obligations under this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale)occur, the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until the valid termination of this Agreement in accordance with its terms. Each Stockholder hereby agrees to (i) authorize Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement and (ii) notify Parent as promptly as practicable (and in any event within 48 hours) in writing of the number of any additional shares of Company Common Stock of which such Stockholder acquires record or beneficial ownership on or after the date hereof.
Appears in 2 contracts
Samples: Merger Agreement (Revance Therapeutics, Inc.), Tender and Support Agreement (Revance Therapeutics, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of such Stockholder’s obligations hereunder in any material respect, otherwise make any representation or warranty of such Stockholder herein untrue or incorrect, or have the effect of preventing or disabling such Stockholder from performing any of its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, (x) any Stockholder that is an individual may Transfer all or Subject Shares (i) to any portion member of such Stockholder’s immediate family, (ii) to a trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, (iii) by will or under the laws of intestacy upon the death of such Stockholder or (iv) to any charitable organization and (y) any Stockholder that is an entity may Transfer Subject Shares to a Permitted Transferee any affiliate (as defined belowin the Merger Agreement) (any of such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), Stockholder; provided, that a Transfer described transfer referred to in clause (x) through (y) of this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) at the Permitted Transferee time of such Subject Shares, prior to transfer and the date of such Transfer, agrees in a signed writing satisfactory transferee shall have executed and delivered to Parent (acting reasonably) and Merger Sub a counterpart to accept this Agreement pursuant to which such Subject Shares subject to transferee shall be bound by all of the terms and provisions of this Agreement and to be bound by the terms of this Agreement as agree and acknowledge that such person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its termsSection 5.
Appears in 2 contracts
Samples: Tender and Support Agreement, Tender and Support Agreement (ARMO BioSciences, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatthat such Stockholder shall not take any action that would result in a breach of any representation or warranty of such Stockholder contained herein or have the effect of preventing or disabling such Stockholder from performing any of its obligations under this Agreement or would reasonably be expected to materially impede or materially delay the performance by any Stockholder of its obligations under this Agreement.
(b) Except as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject SharesSecurities, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject SharesSecurities, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares Securities or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares Securities or (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares Securities into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject SharesSecurities; provided that such Stockholder may (A) if such Stockholder is a partnership, limited liability company or corporation, distribute Subject Securities to its partners, members, shareholders, equity holders or affiliated entities (as applicable), but only if and to the extent the recipients thereof agree to be bound by the obligations set forth herein with respect to such Subject Securities as if they were Stockholders hereunder, with Parent and Merger Sub named as express third-party beneficiaries of such agreements, (B) if such Stockholder is an individual, Transfer any Subject Securities to any member of such Stockholder’s immediate family, or to a trust for the benefit of such Stockholder or any member of such Stockholder’s immediate family, (C) Transfer any Subject Securities for charitable purposes as charitable gifts or donations, and (D) Transfer any Subject Securities upon the death of such Stockholder (each, a “Permitted Transfer”). Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company Securities shall occur (including, but not limited to, including a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares Securities subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement.
(c) Such Stockholder agrees that it shall not, and shall cause each of its affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement. Notwithstanding Section 4.1(b), such Stockholder may make Transfers of its Subject Securities as Parent may agree in accordance with writing in its termssole discretion.
Appears in 2 contracts
Samples: Tender and Support Agreement (Nimble Storage Inc), Tender and Support Agreement (Hewlett Packard Enterprise Co)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes including pursuant to Section 1.1 or Section 4.1) or under the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such StockholderShareholder’s Equity Interests in the Company, including any Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such StockholderShareholder’s Equity Interests in the Company, including any Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Equity Interests, including the Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Shareholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Shareholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of initio and such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (Shareholder agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Shareholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Shareholder may make Transfers of Subject Shares (a) to any wholly-owned Subsidiary of such Shareholder, in which case the Subject Shares shall continue to be bound by this Agreement and provided that any such transferee agrees in accordance with writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer; or (b) as Parent may otherwise agree in writing in its termssole discretion.
Appears in 2 contracts
Samples: Tender and Support Agreement (Zymogenetics Inc), Tender and Support Agreement (Warburg Pincus LLC)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (whichhereunder, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such each Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Share Encumbrance, other than Permitted Share Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer), including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract Contract, option or other agreement (including profit sharing agreement), arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may shall be permitted to Transfer all or any portion Subject Shares to an Affiliate of such Stockholder’s Subject Shares , provided that such Stockholder prior to and as a Permitted Transferee (as defined below) (any condition to the effectiveness of such Transfer Transfer, causes each such transferee to execute a counterpart signature page to this Agreement and any Transfer as deliver the same to the Parent may agree and the Purchaser, pursuant to Section 4.01(d) below, which such transferee agrees to be a “Permitted Transfer”)Stockholder” pursuant to, providedand to be bound by, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) Subject Shares that are the Permitted Transferee of such Subject Shares, prior to the date subject of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such a Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, until the Termination Time, each Stockholder shall not, directly or indirectly, accept any tender offer or exchange offer that constitutes a Takeover Proposal and shall not tender any Subject Shares in accordance with its termsany such tender offer or exchange offer.
Appears in 2 contracts
Samples: Tender and Support Agreement (Jamba, Inc.), Tender and Support Agreement
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after Except pursuant to the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the express terms of this Agreement Agreement, such VC Shareholder shall not (and the Business Combination Agreementshall not permit any Person under such VC Shareholder’s control to), from and after without the date hereof and until prior written consent of the termination of this Agreement in accordance with its terms, such Stockholder shall notInvestor, directly or indirectly, (i) create grant any proxies, powers of attorney, rights of first offer or permit refusal or enter into any voting trust with respect to exist any Encumbrance, other than Permitted Encumbrances, on any of such StockholderVC Shareholder’s Subject Shares, (ii) transfer, sell (including short sell), assign, gifttransfer, hedgetender, distributepledge, pledge encumber, grant a participation interest in, hypothecate or otherwise dispose of (includingincluding by gift) (each, for the avoidance a “Transfer”) any of doubtsuch VC Shareholder’s Subject Shares, by depositing(iii) otherwise permit any Liens to be created on any of such VC Shareholder’s Subject Shares, submitting or otherwise tendering any such Subject Shares (iv) enter into any tender contract, agreement, option, instrument or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer arrangement or entry into any derivative arrangement understanding with respect to (collectively, “Transfer”)the direct or indirect Transfer of, any of such StockholderVC Shareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit take any other action that would restrict, limit or permit interfere in any material respect with the deposit of any performance of such StockholderVC Shareholder’s Subject Shares into a voting trust obligations hereunder or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoingtransactions contemplated hereby or, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” meansfollowing sentence, (a) with respect to otherwise make any Stockholder that is a legal Person, any wholly-owned subsidiary representation or warranty of such Person, and (b) with respect to VC Shareholder herein untrue or incorrect in any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersmaterial respect. If any involuntary Transfer of any of such StockholderVC Shareholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such StockholderVC Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such VC Shareholder’s Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement as a VC Shareholder for all purposes hereunder. Such VC Shareholder agrees that it shall not, and shall cause each of its controlled Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any equity interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Transaction Agreement, which shall continue . Each VC Shareholder hereby authorizes the Investor to direct the Company to impose stop orders to prevent the Transfer of any of such VC Shareholder’s Subject Shares in full force and effect until valid termination violation of this Agreement in accordance with its termsAgreement.
Appears in 2 contracts
Samples: Tender and Support Agreement (Roche Holding LTD), Tender and Support Agreement (Foundation Medicine, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement Except as expressly provided hereunder in Section 1.3 or in connection with any transaction to which Section 4.7 is terminatedapplicable, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing(but in no case, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(bRestricted Funds) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, a “Transfer”), any or all of such Stockholder’s Subject Shares, Shares or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Subject Shares (other than, following a termination of this Agreement, Subject Shares that are not Restricted Voting Shares), or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s Subject Sharesobligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, including a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Such Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in accordance the Company for the purpose of opposing or competing with its termsor taking any actions inconsistent with the transactions contemplated by the Merger Agreement. For the avoidance of doubt, this Section 4.2 shall not apply to the Restricted Funds.
Appears in 2 contracts
Samples: Tender and Support Agreement (Solutia Inc), Tender and Support Agreement (Southwall Technologies Inc /De/)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes or under the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination earlier of the date this Agreement in accordance with its termsis terminated and the receipt of the Company Stockholder Approval, such the Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s the Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s the Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s the Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s of the Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such the Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of the Stockholder’s Subject Sharesobligations hereunder or otherwise make any representation or warranty of the Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any the Stockholder may Transfer all the Subject Shares (1) if such Stockholder is a partnership, limited liability company or trust, to one or more partners or members of such Stockholder or to an affiliated corporation under common control with such Stockholder or to any trustee or beneficiary of the trust, (2) if such Stockholder is an individual, (w) to any member of the Stockholder’s immediate family, (x) to a trust for the sole benefit of the Stockholder or any portion member of such the Stockholder’s Subject Shares immediate family, the sole trustees of which are the Stockholder or any member of the Stockholder’s immediate family, (y) by will, or (z) under the laws of intestacy upon the death of the Stockholder, (3) to a Permitted Transferee charitable organization, including but not limited to, a private charitable foundation under Section 501(c)(3) of the Code or (as defined below4) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), Rule 10b5-1 in place prior to the date of this Agreement; provided, that a Transfer described referred to in clause (1), (2)(w), (2)(x), (2)(y) or (3) of this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, transferee agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such the Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as and to agree and acknowledge that such person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such the Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such the Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Notwithstanding the foregoing, the Stockholder may make such Transfers of the Subject Shares as Parent may agree in accordance with writing in its termssole discretion.
Appears in 2 contracts
Samples: Voting Agreement (TriVascular Technologies, Inc.), Voting Agreement (Endologix Inc /De/)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of such Stockholder’s obligations hereunder in any material respect, otherwise make any representation or warranty of such Stockholder herein untrue or incorrect, or have the effect of preventing or disabling such Stockholder from performing any of its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any Stockholder each stockholder may Transfer all or Subject Shares to any portion affiliate (as defined in the Merger Agreement) of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), ; provided, that a such Transfer described in this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.
Appears in 2 contracts
Samples: Tender and Support Agreement (Loxo Oncology, Inc.), Tender and Support Agreement
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.01, such Stockholder Shareholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such StockholderShareholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution), or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderShareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract Contract, option or other agreement, arrangement or understanding with respect to any Transfer of such StockholderShareholder’s Subject Shares or any legal right or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any of such StockholderShareholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such StockholderShareholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such StockholderShareholder’s Subject SharesShares or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Shareholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Shareholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initioinitio and such Shareholder agrees that any such prohibited action shall and will be enjoined. Notwithstanding In furtherance of this Agreement, concurrently herewith, such Shareholder shall, and hereby authorizes Parent, Sub, the foregoingCompany and their respective counsel to, any Stockholder may Transfer notify the Company’s transfer agent that there is a stop transfer order with respect to all or any portion of such StockholderShareholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true places limits on the voting and correct upon such Transfer and (y) the Permitted Transferee transfer of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any or all of such StockholderShareholder’s Subject Shares in the Company shall occur (including, but not limited toif applicable, a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of or the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding the foregoing, any Shareholder may Transfer Subject Shares to one or more partners or members of such Shareholder or to an affiliated entity under common control with such Shareholder or to any trustee or beneficiary of the trust, provided, that such a Transfer shall be permitted only if, as a precondition, the transferee of such Subject Shares agrees in writing, to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement and to agree and acknowledge that such person shall be deemed to constitute a Shareholder for all purposes of this Agreement. If so requested by Parent, such Shareholder agrees that the Subject Shares shall bear a legend stating that the respective Subject Shares are subject to this Agreement, provided such legend shall be removed if the Offer is terminated or withdrawn or the Merger Agreement is terminated in accordance with its termsterms or if this Agreement is otherwise terminated in accordance with the terms hereof.
Appears in 2 contracts
Samples: Merger Agreement (Diplomat Pharmacy, Inc.), Tender and Support Agreement (Diplomat Pharmacy, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder (including pursuant to Section 1.1 or Section 4.1) or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying voluntarily or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectlyinvoluntarily, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distributemortgage, pledge or otherwise dispose of (including, for the avoidance of doubtincluding by merger, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer, includingby testamentary disposition, for the avoidance by operation of doubtlaw or otherwise), any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares or (vi) directly or indirectly, take or permit any other action that would reasonably be expected to in any way materially restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect; provided that the restrictions contained in this Section 4.2 shall not apply with respect to any transfer of the Subject Shares by a Stockholder pursuant to applicable Laws of descent and distribution; provided, further, that any such proposed transferee must agree in writing to take such Subject Shares subject to and to be bound by the terms and conditions of this Agreement applicable to such Subject Shares. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer and any Transfer as Parent prohibited action may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any equity interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares as Parent may agree in writing in its sole discretion. If so requested by Parent, such Stockholder agrees that the Subject Shares shall bear a legend stating that such Subject Shares are subject to this Agreement (provided, such legend shall be removed upon the valid termination of this Agreement).
(b) At all times until the Expiration Date, in furtherance of this Agreement, such Stockholder shall, and hereby does, authorize and instruct the Company or its counsel to notify the Company’s transfer agent that, from the date each Stockholder tenders its Subject Shares in accordance with Section 1.1 until the Expiration Date, there is a stop transfer order with respect to all of the Subject Shares of such Stockholder (and that this Agreement places limits on the voting and transfer of such Shares until the Expiration Date) subject to the tendering of the Subject Shares in accordance with this Agreement and subject to any permitted Transfers pursuant to Section 4.2(a); provided, however, that (i) if this Agreement shall have been terminated in accordance with its terms or (ii) immediately following the Closing (and in any event within such time as would not delay receipt by the Stockholders of the Merger Consideration), the foregoing authorization and instruction shall be null and void and shall have no further force or effect. Until this Agreement is terminated in accordance with its terms, the obligations of such Stockholder specified in this Agreement shall apply whether or not the Company Board shall have made an Adverse Change Recommendation.
(c) For the avoidance of doubt, neither any forfeiture of Shares, net settlement or purchase by the Company to satisfy tax withholding obligations nor sale of Shares to the extent required to satisfy any tax withholding obligation upon time vesting of a Company RSU occurring prior to the Offer Acceptance Time, shall be deemed to breach any provision hereof.
(d) Notwithstanding Section 4.2(a) above, such Stockholder may make Transfers, for estate planning purposes or as a gift or charitable donation, of up to 100,000 shares of Common Stock held by such Stockholder; provided, further, that any such proposed transferee must agree in writing to take such Subject Shares subject to and to be bound by the terms and conditions of this Agreement applicable to such Subject Shares.
Appears in 2 contracts
Samples: Tender and Support Agreement (Datawatch Corp), Tender and Support Agreement (Altair Engineering Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder, under the Merger Agreement or pursuant to the terms of the Stock Loan Agreements or the Voting and Disposition Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such the Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such the Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such the Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such the Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such the Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such the Stockholder’s Subject Shares, or (f) take or permit any other action that would restrict, limit or interfere with the performance of the Stockholder’s obligations hereunder in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. The Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any of the Stockholder’s Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any the Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), Affiliate or Subsidiary; provided, that a Transfer described transfer referred to in this sentence shall be a Permitted Transfer permitted only if (x) the transferee shall have executed and delivered to the Acquirer Parties a counterpart to this Agreement pursuant to which such transferee shall be bound by all of the representations terms and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes provisions of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such the Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such the Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such the Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Notwithstanding the foregoing, the Stockholder may make Transfers of its Subject Shares as Parent may agree in accordance with writing in its termssole discretion. The Stockholder shall notify Parent as promptly as practicable in writing of the number of any additional shares of Company Class A Common Stock of which the Stockholder acquires beneficial or record ownership on or after the date hereof.
Appears in 2 contracts
Samples: Voting Agreement (Virtu Financial, Inc.), Voting Agreement (Jefferies Group LLC)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or Subject Shares (i) to any portion member of such Stockholder’s Subject Shares immediate family, (ii) to a Permitted Transferee trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, (as defined belowiii) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) belowa charitable organization, including but not limited to, a “Permitted Transfer”)private charitable foundation under Section 501(c)(3) of the Internal Revenue Code, or (iv) by will or under the laws of intestacy upon the death of such Stockholder, provided, that a Transfer described referred to in clause (i) through (iv) of this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, transferee agrees in writing, in a signed writing satisfactory manner reasonably acceptable to Parent (acting reasonably) Parent, to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as and to agree and acknowledge that such person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Parent may agree in accordance with writing in its termssole discretion.
Appears in 2 contracts
Samples: Voting and Support Agreement (Baker Bros. Advisors Lp), Voting and Support Agreement (Alexion Pharmaceuticals Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after From the date hereof of this Agreement and until the Termination Time (as defined below), other than pursuant to this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairingAgreement, the consummation of Merger Agreement, the Offer, the Merger or the other transactions contemplated by the Business Combination this Agreement or the performance by Merger Agreement (the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement“Transactions”), from no Holder shall, and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Holder shall not, directly not permit any other Person acting at such Holder’s direction or indirectly, on such Holder’s behalf to:
(i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, transfer, tender, exchange, offer, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”)to, any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing) (each, a “Transfer”), other than Permitted Transfers;
(ii) create any lien, claim, pledge, grant, hypothecation, obligation, option, charge, proxy, voting trust or other encumbrance or restriction on title, transfer or exercise of any rights of a Holder in respect of such Shares (“Lien”) on the Shares, except Liens arising under or pursuant to, or imposed by, applicable Law, this Agreement, the Merger Agreement, the Transactions, any Company Compensatory Awards, any employee benefit plan of the Company, any restrictions under applicable federal or state securities laws, or security interests or other encumbrances incurred in connection with standard margin account arrangements) (“Permitted Liens”);
(iii) deposit any Shares into a voting trust, or enter into a voting agreement or similar arrangement, or grant or permit the grant of any proxy, power of attorney or other authorization or consent in, or with respect to, the Shares; or
(iv) enter into any Contract with respect to any Transfer or Lien prohibited by this Section 1. Notwithstanding the foregoing, a Holder may: Transfer Shares (w) in connection with the exercise, vesting or settlement of Company Compensatory Awards (including the net settlement of such Stockholder’s Subject Shares equity or sale of underlying shares of Company Common Stock in order to pay any exercise price and any tax withholding obligations in connection therewith), (x) to any Affiliate, Subsidiary, partner or member of the Holder or to a trust established for the benefit of the Holder or any legal or beneficial interest thereinof its Affiliates, (ivy) grant if such Holder is an individual, (i) to any member of such Holder’s immediate family or permit any member of such Holder’s immediate family or (ii) to any person or entity if and to the grant of extent required by any proxynon-consensual legal order, power-of-attorney by divorce decree or by will, intestacy or other authorization similar law (provided, however, that in case of the foregoing clauses (x) and (y)(i), as a condition to such Transfer, the recipient agrees in writing to be bound by this Agreement and delivers a copy of such executed written agreement to Parent prior to the consummation of such Transfer); or (z) with Parent’s prior written consent (such exceptions set forth in clauses (w) through (z), a “Permitted Transfer”). Nothing in this Agreement shall prohibit direct or indirect Transfers of equity or other interests in a Holder. Any action with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence this Section 1 shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.
Appears in 2 contracts
Samples: Tender and Support Agreement (Engine Capital, L.P.), Tender and Support Agreement (Hill International, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder in any material respect or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Securities on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, (x) any Stockholder that is an individual may Transfer all or Subject Shares (i) to any portion member of such Stockholder’s Subject Shares immediate family, (ii) to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all trust for the sole benefit of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to or any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder’s immediate family, (ii) the sole trustees of which are such Stockholder or any member of such Stockholder’s estate immediate family, (iii) by will or under the laws of intestacy upon the death of such Stockholder, Stockholder or (iiiiv) to any charitable organization and (y) any trust Stockholder that is an entity may Transfer Subject Shares to any Affiliate or other Person established bySubsidiary; provided, or on behalf of, that a transfer referred to in clause (x) through (y) of this sentence shall be permitted only if the transferee shall have executed and delivered to Parent and Purchaser a counterpart to this Agreement pursuant to which such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes transferee shall be bound by all of the terms and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersprovisions of this Agreement. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Parent may agree in accordance with writing in its termssole discretion. Each Stockholder shall notify Parent as promptly as practicable (and in any event within 48 hours after receipt) in writing of the number of any additional shares of Common Stock of which such Stockholder acquires beneficial or record ownership on or after the date hereof.
Appears in 2 contracts
Samples: Tender and Support Agreement (Allergan PLC), Tender and Support Agreement (Tobira Therapeutics, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminatedvalidly terminated in accordance with Section 5.2, such Stockholder shall not, directly or indirectly, take any action that would have without the effect prior written consent of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectlyParent, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject SharesShares or Company Stock Options, (iib) transfer, sell, assign, gift, hedge, distributelend, pledge or otherwise dispose of (including, for the avoidance of doubtincluding by sale or merger, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer, includingby testamentary disposition, for the avoidance by liquidation or dissolution, by dividend or distribution, by operation of doubtLaw or otherwise), any transfer either voluntarily or entry involuntarily, or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject SharesShares or Company Stock Options, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or Company Stock Options or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Company Stock Options, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, (f) enter into any Contract that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect as though made on the date of such Contract or (g) approve or consent to any of the forgoing. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares or Company Stock Options in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares or Company Stock Options, as applicable, subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2. Notwithstanding the foregoing, (x) such Stockholder may make Transfers of its termsSubject Shares and Company Stock Options as Parent may agree in writing in its sole discretion and (y) such Stockholder may Transfer Subject Shares and Company Stock Options (and any shares of Common Stock underlying such Company Stock Options) (i) to a trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, (ii) by will or under the Laws of intestacy upon the death of such Stockholder or (iii) by effecting a “net exercise” of a Company Stock Option in which the Company holds back shares of Common Stock otherwise issuable (but not the sale of already owned shares of Common Stock) either to pay the exercise price upon the exercise of a Company Stock Option or to satisfy the Stockholder’s tax withholding obligation upon the exercise of a Company Stock Option, in each case as permitted pursuant to the terms of any Company Plan; provided, that the transferee of the Transfer referred to in clauses (x) or (y)(i)-(ii) shall have, prior to any such Transfer, executed and delivered to Parent and Merger Sub a counterpart to this Agreement pursuant to which such transferee shall be bound by all of the terms and provisions of this Agreement and agree and acknowledge that such Person shall constitute a “Stockholder” for all purposes of this Agreement. Nothing herein will restrict the ability of Stockholder to exercise any Company Stock Options.
Appears in 2 contracts
Samples: Tender and Support Agreement (Merck Sharp & Dohme LLC), Tender and Support Agreement (Imago BioSciences, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termshereunder, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Share Encumbrance, other than Permitted Share Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, including by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer), including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract Contract, option or other agreement (including profit sharing agreement), arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, including a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, until the Termination Date, such Stockholder shall not, directly or indirectly, accept any tender offer or exchange offer that constitutes an Acquisition Proposal and shall not tender any Subject Shares in accordance with its termsany such tender offer or exchange offer.
Appears in 2 contracts
Samples: Tender and Support Agreement (LKQ Corp), Tender and Support Agreement (Coast Distribution System Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until For so long as this Agreement is terminatedhas not been validly terminated in accordance with its terms, such the Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such or delaying, the Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairingimpairing or delaying, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Merger Agreement or the performance by the Company of its obligations under the Business Combination Merger Agreement.
(b) Except as expressly provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termshereunder, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any EncumbranceEncumbrances, other than Permitted Encumbrances, on any of such Stockholder’s the Subject Shares, (ii) transfer, sell, offer for sale, short sell, assign, gift, hedge, distribute, pledge pledge, hypothecate or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such of the Subject Shares into any tender or exchange offer other than offer), change, limit, arbitrage or reallocate the Offer andeconomic benefits and risks of ownership of, including, for the avoidance of doubt, any transfer or entry enter into or acquire any derivative arrangement with respect to (collectively, “Transfer”), ) any of such Stockholder’s the Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s the Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s of the Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s the Subject SharesShares or (vi) commit or agree to take any of the foregoing actions. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such the Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms. For the avoidance of doubt, the fact that any Subject Shares are held in a margin account pursuant to the terms thereof shall not be deemed a breach or violation of any representation, warranty or covenant contained herein; provided, that the Stockholder has retained full power to vote and direct the voting of such Subject Shares.
(c) The Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement.
(d) In the event of any stock split, stock dividend or distribution, merger, reorganization, recapitalization, reclassification, combination, exchange of shares or the like of the capital stock of the Company affecting the Subject Shares, the terms of this Agreement shall apply to the resulting securities.
Appears in 1 contract
Samples: Voting and Support Agreement (Tessco Technologies Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder or under the Merger Agreement (which, for clarity, includes the tendering of such Stockholder’s the Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement is validly terminated in accordance with its termsSection 5.2, such Stockholder the Shareholder shall not, directly or indirectly, (i1) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholderthe Shareholder’s Subject Shares, (ii2) transfer, sell (including short sell), assign, gift, hedge, distribute, pledge pledge, grant a participation interest in, hypothecate or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andOffer), including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholderthe Shareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii3) enter into any Contract with respect to any Transfer of such Stockholderthe Shareholder’s Subject Shares or any legal or beneficial interest therein, (iv4) grant or permit the grant of any proxyproxy (other than this Agreement), power-of-attorney or other authorization or consent in or with respect to any such Stockholderthe Shareholder’s Subject Shares or Shares, (v5) deposit or permit the deposit of any of such Stockholderthe Shareholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement (other than this Agreement) with respect to any of such Stockholderthe Shareholder’s Subject Shares, or (6) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of the Shareholder’s obligations hereunder in any material respect, otherwise make any representation or warranty of the Shareholder herein untrue or incorrect, or have the effect of preventing or disabling the Shareholder from performing any of its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. The Shareholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any Stockholder the Shareholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), Affiliate of the Shareholder; provided, that a such Transfer described in this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder the Shareholder would be true and correct upon at the time of (and immediately prior to giving effect to) such Transfer and (y) the Permitted Transferee of such Subject Shares, prior transferee has executed and delivered to the date of Parent and Merger Sub a counterpart to this Agreement pursuant to which such Transfer, transferee agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to be bound by all of the terms and conditions of this Agreement and to be bound by acknowledges and agrees that such transferee shall constitute the terms of this Agreement as a “Stockholder” Shareholder for all purposes of this Agreement. Agreement (any such Transfer, a “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersTransfer”). If any involuntary Transfer of any of such Stockholderthe Shareholder’s Subject Shares in the Company shall occur (including, but not limited to, including a sale by such Stockholderthe Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until the valid termination of this Agreement in accordance with Section 5.2.
(b) Unless and until this Agreement shall have been validly terminated in accordance with Section 5.2, the Shareholder agrees that it shall not, and shall cause each of its termsAffiliates not to, become a member of a “group” with respect to any Subject Shares (as defined under Section 13(d) of the Exchange Act) for the purpose of opposing or competing with or taking any actions in opposition or competition with the transactions contemplated by this Agreement or the Merger Agreement.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreementincluding pursuant to Section 3(a)), from and after pursuant to the date hereof and until the termination of this Agreement in accordance with its termsTransactions, such Stockholder Holder shall not, directly or indirectly, (i) except for already existing liens pledged to secure personal credit lines or loans, which liens and pledges will be released not later than the time such Subject Shares are tendered pursuant to the Transactions, if necessary, create or permit to exist any Encumbrancelien, other than Permitted EncumbrancesEncumbrances (as defined below), on any or all of such StockholderHolder’s Subject Shares, (ii) except as otherwise permitted below, transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such StockholderHolder’s Subject Shares, or including any right or interest therein (or consent to any of the foregoing), (iii) except as otherwise permitted below, enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of any or all of such StockholderHolder’s Subject Shares or any legal right or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any or all of such StockholderHolder’s Subject Shares or Shares, (v) deposit or permit the deposit of any or all of such StockholderHolder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Holder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Holder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of initio and such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (Holder agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any or all of such StockholderHolder’s Subject Shares in the Company shall occur (including, but not limited toif applicable, a sale by such StockholderHolder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Holder agrees that it shall not, and shall cause each of its “Affiliates” (as defined below) not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any equity securities in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the Transactions. Notwithstanding the foregoing, such Holder may make Transfers of Subject Shares and any rights or interests therein in each of the foregoing (x) to any “Permitted Transferee” (as defined below), in which case the Subject Shares shall continue to be bound by this Agreement and provided that any such Permitted Transferee agrees in writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer; or (y) as the Company may otherwise agree in writing in its sole discretion. If so requested by the Company, such Holder agrees that the Subject Shares shall bear a legend stating that the Subject Shares are subject to this Agreement, provided such legend shall be removed if in the Company’s reasonable judgment, the Transactions will not be effected or if this Agreement is otherwise terminated in accordance with its termsthe terms hereof. A “Permitted Encumbrance” means any liens pursuant to any applicable restrictions on transfer under the Securities Act. A “Permitted Transferee” means, with respect to any Holder, (A) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild, or the spouse of any child, adopted child, grandchild, or adopted grandchild of such Holder or a former spouse who is entitled to such transfer pursuant to the terms of a domestic relations order, (B) any charitable organization described in Section 170(c) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder, (C) any trust, the beneficiaries of which include only one or more of the Persons named in clause (A) or (B) of this definition, or (D) any corporation, limited liability company, or partnership, the stockholders, members, and general or limited partners of which include only the Persons named in clause (A) or (B) of this definition. An “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person. As used in the definition of “Affiliate,” the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise. A “Person” means (i) an individual, partnership, limited liability company, corporation, joint stock company, trust, estate, joint venture, association or unincorporated organization, or any other form of business or professional entity, but shall not include a governmental authority, or (ii) any “person” for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial or other interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement agreement, understanding or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder in any material respect or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Securities on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any Stockholder may Transfer all Subject Shares (i) if an entity, to any Affiliate of such Stockholder, or (ii) if a natural person, (A) to any portion member of such Stockholder’s Subject Shares immediate family, (B) to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all trust for the sole benefit of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to or any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder’s immediate family, (ii) the sole trustees of which are such Stockholder or any member of such Stockholder’s estate immediate family, (C) by will or under the laws of intestacy upon the death of such Stockholder, (D) to a charitable organization, or (iiiE) to any trust other Stockholder as a gift or other Person established byotherwise; provided that any such transfer referred to in clauses (i) or (ii)(A) through (C) shall be permitted only if the transferee shall have executed and delivered to Parent and Purchaser, or on behalf ofa joinder to this Agreement, in a form reasonably acceptable to Parent and Purchaser and delivering such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes executed joinder to Parent and controlled Purchaser as soon as practicable after such transfer, pursuant to which such transferee shall be bound by all of the terms and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersprovisions of this Agreement. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable LawLegal Requirements, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Parent may agree in writing in its sole discretion.
Appears in 1 contract
Samples: Tender and Support Agreement (Alder Biopharmaceuticals Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject SharesShares or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or Subject Shares (i) to any portion member of such Stockholder’s Subject Shares immediate family, (ii) to a Permitted Transferee trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, or (as defined belowiii) (any by will or under the laws of intestacy upon the death of such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”)Stockholder, provided, that a Transfer described transfer referred to in clause (i) through (iii) of this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, transferee agrees in writing, in a signed writing satisfactory manner reasonably acceptable to Parent (acting reasonably) Parent, to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as and to agree and acknowledge that such Person shall constitute a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Parent may agree in accordance with writing in its termssole discretion.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder, from and after during the date hereof and until time this Agreement is terminatedin effect, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceShare Lien, other than Permitted EncumbrancesShare Liens, on any of such Stockholder’s Shareholder's Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge gift or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer (other than the Offer andOffer)), including, for the avoidance of doubt, any transfer or entry into any derivative arrangement with respect to (collectively, “"Transfer”"), any of such Stockholder’s Shareholder's Subject Shares, or any right or interest therein (or consent to any of the foregoing); provided that either Shareholder shall be permitted to Transfer any Subject Shares to the other Shareholder, so long as such Subject Shares continue to be Subject Shares hereunder, (iiic) enter into any pledging or hedging Contract, derivative arrangement, option or other Contract with respect to any Transfer of such Stockholder’s (including profit sharing agreement) that would prevent Shareholder from delivering the Subject Shares into the Offer or any legal or beneficial interest thereinfrom voting the Subject Shares, in each case, in accordance herewith, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Shareholder's Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Shareholder's Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Shareholder's Subject SharesShares or (f) take or permit any other action that would prevent the performance of such Shareholder's obligations hereunder or otherwise make any representation or warranty of such Shareholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding ; provided that the foregoingTransfer restrictions set forth in Section 4.1(b) shall terminate as of 11:59 p.m. (New York City time) on April 25, any Stockholder may 2018 (the "Transfer Restriction Cut-Off Time"); it being understood that all or any portion of such Stockholder’s Subject Shares not Transferred in accordance with this Agreement after the Transfer Restriction Cut-Off Time shall continue to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant be subject to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties restrictions applicable to Subject Shares set forth in this Agreement with respect to such Stockholder would be true Agreement, including under Article I and correct upon such Transfer and (y) the Permitted Transferee of such Subject Sharesthis Section 4.1, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely except for the benefit of, such Stockholder and/or his or her immediate family membersrestrictions set forth in Section 4.1(b). If any involuntary Transfer of any of such Stockholder’s Shareholder's Subject Shares in the Company shall occur (including, but not limited to, including a sale by such Stockholder’s Shareholder's trustee in any bankruptcy, or a sale to a purchaser at any creditor’s 's or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, until the termination of this Agreement, such Shareholder shall not, directly or indirectly, accept any tender offer or exchange offer that constitutes an Alternative Acquisition Proposal and shall not tender any Subject Shares in any such tender offer or exchange offer. Nothing in this Agreement shall prohibit any pledging or hedging or entering into any Contract, derivative arrangement, option or other Contract (including profit sharing agreement) that will not prevent Shareholder from delivering the Subject Shares into the Offer or from voting the Subject Shares, in each case, in accordance with herewith. Notwithstanding the foregoing, such Stockholder may make Transfers of its termsSubject Shares as Buyer may agree in writing in its sole discretion.
Appears in 1 contract
Samples: Tender and Support Agreement (Elliott Associates, L.P.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder, from and after during the date hereof and until time this Agreement is terminatedin effect, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceShare Lien, other than Permitted EncumbrancesShare Liens, on any of such StockholderShareholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge gift or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer (other than the Offer andOffer)), including, for the avoidance of doubt, any transfer or entry into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderShareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing); provided that either Shareholder shall be permitted to Transfer any Subject Shares to the other Shareholder, so long as such Subject Shares continue to be Subject Shares hereunder, (iiic) enter into any pledging or hedging Contract, derivative arrangement, option or other Contract with respect to any Transfer of such Stockholder’s (including profit sharing agreement) that would prevent Shareholder from delivering the Subject Shares into the Offer or any legal or beneficial interest thereinfrom voting the Subject Shares, in each case, in accordance herewith, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such StockholderShareholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such StockholderShareholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such StockholderShareholder’s Subject SharesShares or (f) take or permit any other action that would prevent the performance of such Shareholder’s obligations hereunder or otherwise make any representation or warranty of such Shareholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding ; provided that the foregoingTransfer restrictions set forth in Section 4.1(b) shall terminate as of 11:59 p.m. (New York City time) on April 25, any Stockholder may 2018 (the “Transfer Restriction Cut-Off Time”); it being understood that all or any portion of such Stockholder’s Subject Shares not Transferred in accordance with this Agreement after the Transfer Restriction Cut-Off Time shall continue to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant be subject to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties restrictions applicable to Subject Shares set forth in this Agreement with respect to such Stockholder would be true Agreement, including under Article I and correct upon such Transfer and (y) the Permitted Transferee of such Subject Sharesthis Section 4.1, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely except for the benefit of, such Stockholder and/or his or her immediate family membersrestrictions set forth in Section 4.1(b). If any involuntary Transfer of any of such StockholderShareholder’s Subject Shares in the Company shall occur (including, but not limited to, including a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, until the termination of this Agreement, such Shareholder shall not, directly or indirectly, accept any tender offer or exchange offer that constitutes an Alternative Acquisition Proposal and shall not tender any Subject Shares in any such tender offer or exchange offer. Nothing in this Agreement shall prohibit any pledging or hedging or entering into any Contract, derivative arrangement, option or other Contract (including profit sharing agreement) that will not prevent Shareholder from delivering the Subject Shares into the Offer or from voting the Subject Shares, in each case, in accordance with herewith. Notwithstanding the foregoing, such Stockholder may make Transfers of its termsSubject Shares as Buyer may agree in writing in its sole discretion.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement)Section 6.1, from and after the date hereof and until the termination of this Agreement in accordance with its terms, such each Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLiens, other than Permitted EncumbrancesStockholder Liens, on any of such Stockholder’s Subject Shares, ; (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject SharesSecurities, or any right or interest therein (or consent to any of the foregoing), ; (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares Securities or any legal or beneficial interest therein, ; or (ivd) grant or permit the grant of any proxy, power-of-attorney power of attorney, or other authorization or consent in or with respect to any of the Subject Shares inconsistent with such Stockholder’s Subject Shares or obligations under this Agreement, (ve) deposit or permit the deposit of any of such Stockholder’s the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of the Subject Shares or (f) take any other action that would in any way be reasonably expected to prevent or materially impair such Stockholder’s Subject Sharesability to timely perform its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding Each Stockholder hereby authorizes Parent to direct the foregoing, Company to impose stop orders to prevent the Transfer of any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all Securities on the books of the representations and warranties Company in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes violation of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s the Subject Shares Securities in the Company shall occur occurs (including, but not limited to, a sale by such the Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include includes any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, will take and hold such Subject Shares Securities subject to all of the restrictions, obligationsliabilities, liabilities and rights under this Agreement, which shall will continue in full force and effect until valid termination of this Agreement in accordance with Section 6.1. Each Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of taking any actions inconsistent with such Stockholder’s obligations under this Agreement. Notwithstanding the foregoing, each Stockholder may make Transfers of its Subject Securities (1) with Parent’s and the Company’s prior written consent; (2) to any Person if and to the extent required by any nonconsensual order of a Governmental Authority; (3) pursuant to a Rule 10b5-1 trading plan in effect prior to the date of this Agreement; (4) pursuant to the exercise of any Company Options or Company Warrants in order to pay the exercise price of such Company Options or Company Warrants or satisfy taxes applicable thereto, in each case in accordance with their applicable terms, provided that the underlying Subject Shares not so Transferred shall continue to be subject to the restrictions on Transfers set forth in this Agreement; (5) to any Affiliate of such Stockholder; (6) if such Stockholder is an entity, to any equityholder, partner or member of such Stockholder or, if such Stockholder is a trust, the beneficiary or beneficiaries authorized or entitled to receive distributions from such trust; (7) if such Stockholder is a natural person, by operation of Law or by will, intestacy or other similar applicable Law upon such Stockholder’s death; or (8) if such Stockholder is a natural person, solely for estate or tax planning purposes, for charitable purposes or as charitable gifts or donations to (A) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild or the spouse of any child, adopted child, grandchild or adopted grandchild of such Stockholder, (B) any trust, the trustees of which include only the Persons named in clause (A) and the beneficiaries of which include only the Persons named in clause (A), (C) any corporation, limited liability company or partnership, the stockholders, members or general or limited partners of which include only the Persons named in clauses (A), (B) or (C); provided, however, that in any such case, as a condition to the effectiveness of such Transfer described in the foregoing clauses (5), (6), (7) or (8), each Person to which any of such Shares are Transferred has executed and delivered to Parent and Acquisition Sub a counterpart to this Agreement pursuant to which such Person is bound by all of the terms and provisions of this Agreement applicable to such Stockholder.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder (including pursuant to Section 1.1 or Section 4.1) or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distributemortgage, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Stockholder Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any Shares or (vi) take or permit any other action taken that would in violation of any way restrict, limit or interfere with the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Notwithstanding anything herein to the contrary, Stockholder may (A) if Stockholder is a partnership, limited liability company, corporation, or similar entity, Transfer any and all Subject Shares to a Permitted Transferee its partners, members, stockholders, equity holders or affiliated entities (as defined belowapplicable), (B) if such Stockholder is an individual, (i) Transfer any and all Subject Shares to any members of such Stockholder’s immediate family (e.g., spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild or the spouse of any child, adopted child, grandchild or adopted grandchild), or to a trust or similar vehicle solely for the benefit of such Stockholder or any member of such Stockholder’s immediate family or otherwise for the purpose of estate-planning, and (ii) Transfer any and all Subject Shares by will or under the applicable Laws of descent and distribution, and (C) Transfer any subject Shares (i) by operation of law, (ii) in connection with or for the purpose of tax-planning, or (iii) for charitable purposes or as charitable gifts or donations; provided that any such Transfer and any Transfer as Parent may proposed transferee must agree pursuant in writing to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept take such Subject Shares subject to the terms of this Agreement and to be bound by the terms and conditions of this Agreement as a “Stockholder” for all purposes applicable to such Subject Shares. Any Transfer made in violation of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, the foregoing shall be null and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, void ab initio and such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes agrees that any such prohibited action may and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersshould be enjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Subject Shares for the purpose of opposing or competing with or taking any actions in opposition or competition with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares as Parent may agree in writing in its sole discretion.
(b) At all times until the Expiration Date, in furtherance of this Agreement, such Stockholder shall, and hereby does authorize and instruct the Company or its counsel to notify the Company’s transfer agent that, from the date hereof until the Expiration Date, there is a stop transfer order with respect to all of the Subject Shares of such Stockholder (and that this Agreement in accordance with its termsplaces certain limits on the voting and transfer of such Shares until the Expiration Date); provided, however, that if this Agreement shall terminate, the foregoing authorization and instruction shall be null and void and shall have no further force or effect.
(c) For the avoidance of doubt, no forfeiture of any Subject Shares, or net settlement or purchase by the Company to satisfy tax withholding obligations, shall be deemed to be a breach of any provision hereof.
Appears in 1 contract
Samples: Tender and Support Agreement (Aerohive Networks, Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes including pursuant to Section 1.1 or Section 4.1) or under the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any or all of such Stockholder’s Subject SharesShares and, if applicable, Company Options, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholder’s Company Securities, including any Subject SharesShares and Company Options, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of any or all of such Stockholder’s Subject Shares and, if applicable, Company Options, or any legal right or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any or all of such Stockholder’s Subject Shares or and, if applicable, Company Options, (v) deposit or permit the deposit of any or all of such Stockholder’s Company Securities, including any Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Company Securities, including the Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s Subject Sharesobligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any or all of such Stockholder’s Subject Shares in the and, if applicable, Company Options shall occur (including, but not limited toif applicable, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares and, if applicable, Company Options subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Company Securities for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares and, if applicable, Company Options (a) to any “Permitted Transferee” (as defined below), in which case the Subject Shares and, if applicable, Company Options shall continue to be bound by this Agreement and provided that any such Permitted Transferee agrees in accordance writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer; (b) with respect to any Company Options which expire on or prior to the expiration of the Offer, to the Company for purpose of a net exercise permitted under the documents related to such Company Options (pursuant to which any Common Stock issued by the Company would be Subject Shares); or (c) as Parent may otherwise agree in writing in its terms.sole discretion. If so requested by Parent, such Stockholder agrees that the Subject Shares and, if applicable, Company Options shall bear a legend stating that the respective Subject Shares, Company Options are subject to this Agreement, provided such legend shall be removed upon
Appears in 1 contract
Samples: Merger Agreement (Rocket Fuel Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder (including pursuant to Section 1.1 or Section 4.1) or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distributemortgage, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares or (vi) take or permit any other action that would reasonably be expect to in any way materially restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect; provided that the restrictions contained in this Section 4.2 shall not apply with respect to any transfer of the Subject Shares by a Stockholder pursuant to applicable Legal Requirements of descent and distribution; provided, further, that any such proposed transferee must agree in writing to take such Subject Shares subject to and to be bound by the terms and conditions of this Agreement applicable to such Subject Shares. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer and any Transfer as Parent prohibited action may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares as Parent may agree in writing in its sole discretion. If so requested by Parent, such Stockholder agrees that the Subject Shares shall bear a legend stating that such Subject Shares are subject to this Agreement (provided, such legend shall be removed upon the valid termination of this Agreement).
(b) At all times until the Expiration Date, in furtherance of this Agreement, such Stockholder shall, and hereby does, authorize and instruct the Company or its counsel to notify the Company’s transfer agent that, from the date each Stockholder tenders its Subject Shares in accordance with Section 1.1 until the Expiration Date, there is a stop transfer order with respect to all of the Subject Shares of such Stockholder (and that this Agreement places limits on the voting and transfer of such Shares until the Expiration Date) subject to the tendering of the Subject Shares in accordance with this Agreement and subject to any permitted Transfers pursuant to Section 4.2(a); provided, however, that (i) if the Offer shall have been terminated, (ii) if the Merger Agreement is terminated prior to the purchase of the Subject Shares in the Offer, (iii) if the Company Board shall have made a Company Adverse Change Recommendation (solely in connection with an Acquisition Proposal), (iv) if this Agreement shall have been terminated in accordance with its termsterms or (v) immediately following the Closing (and in any event within such time as would not delay receipt by the Stockholders of the Merger Consideration), the foregoing authorization and instruction shall be null and void and shall have no further force or effect.
(c) For the avoidance of doubt, no forfeiture of any Shares, or net settlement or purchase by the Company to satisfy tax withholding obligations, shall be deemed to breach any provision hereof.
(d) Notwithstanding Section 4.2(a) above, such Stockholder may make Transfers, for estate planning purposes or as a gift or charitable donation, of up to 100,000 shares of Common Stock held by such Stockholder.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as expressly provided hereunder or pursuant to the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer terminated in accordance with the terms of this Agreement and the Business Combination Agreement)Section 6.2, from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (i) grant or create or permit to exist any EncumbranceLien, other than a Permitted EncumbrancesLien (as defined below), on any or all of such StockholderShareholder’s respective Subject SharesSecurities, (ii) transfer, sell, assign, tender, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderShareholder’s respective Subject SharesSecurities, or any right right, title or interest therein (including any right or power to vote to which Shareholder may be entitled) or agree to do or consent to any of the foregoing), (iii) enter into (or caused to be entered into) any Contract with respect to any Transfer of any of such StockholderShareholder’s respective Subject Shares or any legal or beneficial interest thereinSecurities, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any of such StockholderShareholder’s respective Subject Shares Securities (other than, if desirable to Shareholder, to cause such Subject Securities that are not Voting Securities to be voted and to consent in the manner Voting Securities are required to be voted or to consent in accordance with Section 1.1), (v) deposit or permit the deposit of any of such StockholderShareholder’s respective Subject Shares Securities into a voting trust or enter into a voting agreement or arrangement similar arrangement, commitment or understanding with respect to any of such Stockholder’s the Subject Shares. Any Securities, or (vi) take or permit any other action taken in violation that would reasonably be expected to prevent or materially restrict, disable or delay the consummation by Shareholder of the immediately preceding sentence shall be null and void ab initiotransactions contemplated by this Agreement or otherwise adversely impact Shareholder’s ability to perform its obligations hereunder in any material respect. Notwithstanding the foregoing, Shareholder may make Transfers of any Stockholder may Transfer all or any portion of such StockholderShareholder’s respective Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer Securities as Parent may may, in its sole discretion, agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family memberswriting. If any involuntary Transfer of any of such StockholderShareholder’s respective Subject Shares in the Company Securities shall occur (including, but not limited to, a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares Securities subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement is terminated in accordance with its termsSection 6.2.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder in a material way or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect if such action had occurred on or prior to the date hereof. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or Subject Shares (i) to any portion member of such Stockholder’s Subject Shares immediate family, (ii) to a Permitted Transferee trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, or (as defined belowiii) (any by will or under the laws of intestacy upon the death of such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), Stockholder; provided, that a Transfer described transfer referred to in clauses (i) through (iii) of this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to of such Stockholder would be true and correct upon with respect to such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to transferee as if made on the date of such Transfer, Transfer and the transferee agrees in writing, in a signed writing satisfactory manner reasonably acceptable to Parent (acting reasonably) Parent, to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as and to agree and acknowledge that such Person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until the valid termination of this Agreement Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Parent may agree in accordance with writing in its termssole discretion.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with Section 5.1, the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLiens, other than Permitted EncumbrancesStockholder Liens, on any of such Stockholder’s the Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s the Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s the Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney attorney, or other authorization or consent in or with respect to any such Stockholder’s of the Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of the Subject Shares or (f) take or permit any other action that would in any way would be reasonably expected to restrict, limit, impede, delay or interfere with the performance of such Stockholder’s Subject Sharesobligations hereunder in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding The Stockholder hereby authorizes Parent to direct the foregoing, Company to impose stop orders to prevent the Transfer of any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all on the books of the representations and warranties Company in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes violation of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur occurs (including, but not limited to, a sale by such the Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include includes any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, will take and hold such Subject Shares subject to all of the restrictions, obligationsliabilities, liabilities and rights under this Agreement, which shall will continue in full force and effect until valid termination of this Agreement in accordance with Section 5.
1. The Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of taking any actions inconsistent with the transactions contemplated by this Agreement. Notwithstanding the foregoing, the Stockholder may make Transfers of its Subject Shares to (x) if the Stockholder is an entity, any Affiliate, subsidiary, partner, or member of the Stockholder or, if the Stockholder is a trust, the beneficiary or beneficiaries authorized or entitled to receive distributions from such trust, or (y) if the Stockholder is a natural person, (A) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild or the spouse of any child, adopted child, grandchild or adopted grandchild of the Stockholder, (B) any trust, the trustees of which include only the Persons named in clause (A) and the beneficiaries of which include only the Persons named in clause (A), (C) any corporation, limited liability company or partnership, the stockholders, members or general or limited partners of which include only the Persons named in clauses (A), (B) or (C) to any Person by will, for estate or tax planning purposes, for charitable purposes or as charitable gifts or donations; provided, however, that in any such case, as a condition to the effectiveness of such Transfer, (A) each Person to which any of such Shares are Transferred has executed and delivered to Parent and Purchaser a counterpart to this Agreement pursuant to which such Person is bound by all of the terms and provisions of this Agreement, and (B) this Agreement becomes the legal, valid, and binding agreement of such Person, enforceable against such Person in accordance with its terms, subject to the Bankruptcy and Equity Exception.
Appears in 1 contract
Samples: Tender and Support Agreement
No Transfer; No Inconsistent Arrangements. Each Seller agrees that it shall not (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take including by way of any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distributesale, pledge or otherwise dispose other disposition, including without limitation in connection with foreclosures by lenders secured by pledges of (includingShares) transfer or pledge, for or consent to the avoidance transfer or pledge of, any or all of doubtthe Shares owned by it or of any interest therein, by depositing, submitting or otherwise tendering any such Subject Shares enter into any tender contract, option or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer agreement or entry into any derivative arrangement understanding with respect to (collectively, “Transfer”), any such transfer of any such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) Shares, deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any such Shares or take any action that would in any way restrict, limit or interfere or in any way be inconsistent with the performance of its obligations hereunder or the transactions contemplated hereby or by the Merger Agreement. Notwithstanding the foregoing, after the later to occur of (i) June 30, 1998 and (ii) approval and adoption of the Merger Agreement by the affirmative vote of holders of at least two-thirds of all shares of Common Stock entitled to vote thereon, if the Closing has not occurred and no Seller is in breach hereof, the Sellers, collectively, or any of them, may in the aggregate (subject to the next following sentence) (i) transfer up to 100,000 Shares in open market sales pursuant to Rule 144 under the Securities Act of 1933, as amended, and (ii) transfer up to 200,000 Shares pursuant to pledge arrangements securing bona fide commercial loans, PROVIDED that the terms of all such Stockholder’s Subject Sharespledges shall not prohibit the performance by the Sellers of their obligations under Section 4.07 hereof with respect to such pledged Shares or otherwise. Any action taken in violation In the case of any transfers pursuant to clause (i) of the immediately preceding sentence, the number of Shares permitted to be so transferred shall be reduced by the percentage equal to the difference between 100% and the percentage obtained by dividing the number of Shares transferred pursuant to clause (ii) of the immediately preceding sentence by 200,000, and in the case of any transfers pursuant to clause (ii) of the immediately preceding sentence, the number of Shares permitted to be so transferred shall be null reduced by the percentage equal to the difference between 100% and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion percentage obtained by dividing the number of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree transferred pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, clause (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its termsimmediately preceding sentence by 100,000.
Appears in 1 contract
Samples: Voting and Profit Sharing Agreement (Harveys Acquisition Corp)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such StockholderShareholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderShareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such StockholderShareholder’s Subject Shares or any legal or beneficial or other interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such StockholderShareholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such StockholderShareholder’s Subject Shares into a voting trust or enter into a voting agreement agreement, understanding or arrangement with respect to any of such StockholderShareholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Shareholder’s obligations hereunder in any material respect or otherwise make any representation or warranty of such Shareholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Shareholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Securities on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any Stockholder Shareholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family to any member of such StockholderShareholder’s immediate family, (ii) to a trust for the sole benefit of such StockholderShareholder or any member of such Shareholder’s estate immediate family, the sole trustees of which are such Shareholder or any member of such Shareholder’s immediate family, (iii) by will or under the laws of intestacy upon the death of such StockholderShareholder, (iv) to a charitable organization, or (v) to any other Shareholder as a gift or otherwise; provided that any such Transfer referred to in clauses (i) through (iii) any trust or other Person established byshall be permitted only if the transferee shall have executed and delivered to Parent and Merger Sub, or on behalf ofa joinder to this Agreement, in a form reasonably acceptable to Parent and Merger Sub and delivering such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes executed joinder to Parent and controlled Merger Sub as soon as practicable after such Transfer, pursuant to which such transferee shall be bound by all of the terms and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersprovisions of this Agreement. If any involuntary Transfer of any of such StockholderShareholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser Merger Sub at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable LawLegal Requirements, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms. Notwithstanding the foregoing, such Shareholder may make Transfers of its Subject Shares as Parent may agree in writing in its sole discretion.
Appears in 1 contract
Samples: Tender and Support Agreement (Computer Task Group Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminatedvalidly terminated in accordance with Section 5.2, such the Stockholder shall not, directly or indirectly, take any action that would have without the effect prior written consent of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectlyParent, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such the Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distributelend, pledge or otherwise dispose of (including, for the avoidance of doubtincluding by sale or merger, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer, includingby testamentary disposition, for the avoidance by liquidation or dissolution, by dividend or distribution, by operation of doubtLaw or otherwise), any transfer either voluntarily or entry involuntarily, or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such the Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such the Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) subject to the Conditional Proxy granted under Section 1.3, grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such of the Stockholder’s Subject Shares or (except for a proxy provided to management of the Company not in violation of Section 1.3 and customary arrangements with the Stockholder’s prime broker and/or custodian), (v) deposit or permit the deposit of any of such the Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such the Stockholder’s Subject SharesShares (except for customary arrangements with the Stockholder’s prime broker and/or custodian), (vii) enter into any Contract or otherwise take any other action that is inconsistent with, or would restrict, limit or interfere with the performance of, the Stockholder’s obligations hereunder in any material respect or otherwise make any representation or warranty of the Stockholder herein untrue or incorrect in any material respect or (viii) knowingly approve or consent to any of the forgoing. Any action taken in violation of the immediately preceding sentence foregoing shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such the Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such the Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2.
(b) Notwithstanding the foregoing, (i) the Stockholder, if the Stockholder is an individual, may Transfer its termsSubject Shares (A) to any member of the Stockholder’s immediate family, (B) to a trust for the sole benefit of the Stockholder or any member of the Stockholder’s immediate family, the sole trustees of which are the Stockholder or any member of the Stockholder’s immediate family (or any similar Transfer for estate planning purposes), (C) by will or under the laws of intestacy upon the death of the Stockholder, (D) to any charitable organization, (E) by effecting a “net exercise” of a Company Option or a “net settlement” of a Company RSU or Company PSU in which the Company holds back shares of Company Common Stock otherwise issuable either to pay the exercise price upon the exercise of a Company Option and/or to satisfy the Stockholder’s tax withholding obligation upon the exercise of a Company Option or settlement of a Company RSU or Company PSU, or (F) in connection with a broker-assisted sale in the open market with respect to (x) the cashless exercise of a Company Option expiring during the term of this Agreement or (y) exercise of a Company Option or settlement or vesting of a Company RSU or Company PSU, in each case either to pay the exercise price upon the exercise of a Company Option and/or to satisfy the Stockholder’s tax withholding obligation upon the exercise of a Company Option or settlement of a Company RSU or Company PSU and (ii) the Stockholder, if the Stockholder is an entity, may Transfer its Subject Shares to any Affiliate of the Stockholder or to one or more partners or members of the Stockholder; provided, that a Transfer referred to in this Section 4.1 shall be permitted only if (x) all of the representations and warranties in this Agreement with respect to the Stockholder would be true and correct in all material respects upon the completion of such Transfer and (y) the transferee, prior to any such Transfer, executes and delivers to Parent and Merger Sub a counterpart to this Agreement pursuant to which such transferee shall be bound by all of the terms and provisions of this Agreement and agree and acknowledge that such Person shall constitute a “Stockholder” for all purposes of this Agreement.
Appears in 1 contract
Samples: Tender and Support Agreement (Ono Pharmaceutical Co., Ltd.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with Section 5.2, the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLiens, other than Permitted EncumbrancesLiens arising hereunder or as may be applicable under the Securities Act or other applicable securities Laws, on all or any portion of such Stockholder’s the Subject Shares[, Company Stock Options or Company RSUs], (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), all or any portion of such Stockholder’s the Subject Shares[, Company Stock Options or Company RSUs], or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s the Subject Shares Shares[, Company Stock Options or Company RSUs], or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to all or any such Stockholder’s portion of the Subject Shares Shares[, Company Stock Options or Company RSUs], (ve) deposit or permit the deposit of all or any portion of such Stockholder’s the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior or (f) knowingly take any other action that would restrict, limit or interfere in any material respect with the performance of the Stockholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of the Stockholder herein untrue or incorrect in any material respect or seek to do or solicit any of the foregoing actions. Without limiting the generality of the foregoing, during the time this Agreement is in effect, the Stockholder shall not tender, agree to tender or cause or permit to be tendered all or any portion of the Subject Shares into or otherwise in connection with any tender or exchange offer, except pursuant to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersOffer. If any involuntary Transfer of all or any portion of such Stockholder’s the Subject Shares in the Shares[, Company Stock Options or Company RSUs] shall occur (including, but not limited toif applicable, a sale by such the Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares Shares[, Company Stock Options or Company RSUs] subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until the valid termination of this Agreement in accordance with Section 5.2. The Stockholder agrees that it shall not, and shall cause each of such Stockholder’s Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any securities in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the Transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, the Stockholder may make Transfers of Subject Shares[, Company Stock Options and Company RSUs (and any shares of Common Stock underlying such Company Stock Options and Company RSUs)] (i) to any “Permitted Transferee” (as defined below), in which case any such transferred Subject Shares[, Company Stock Options and/or Company RSUs] shall continue to be bound by this Agreement and provided that any such Permitted Transferee agrees in writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer, (ii) [by using already-owned shares of Common Stock (or effecting a “net exercise” of a Company Stock Option or a “net settlement” of a Company RSU) either to pay the exercise price upon the exercise of a Company Stock Option or to satisfy the Stockholder’s tax withholding obligation upon the exercise of a Company Stock Option or settlement of a Company RSU, in each case as permitted pursuant to the terms of any Company Equity Plan, (iii)] by will or the laws of intestacy, or [(iii)][(iv)] as Parent may otherwise agree in writing in its termssole discretion. A “Permitted Transferee” means, with respect to any Stockholder, (A) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild, or the spouse of any child, adopted child, grandchild, or adopted grandchild of the Stockholder, (B) any charitable organization described in Section 170(c) of the Code, (C) any trust, the beneficiaries of which include only the Stockholder and/or the Persons named in clause (A) or (B) of this definition, (D) any corporation, limited liability company, or partnership, the stockholders, members, and general or limited partners of which include only the Stockholder and/or the Persons named in clause (A) or (B) of this definition, (E) if the Stockholder is an entity, any Affiliate, Subsidiary, partner or member of Stockholder, or (F) if the Stockholder is a trust, the beneficiary or beneficiaries authorized or entitled to receive distributions from such trust.
Appears in 1 contract
Samples: Tender and Support Agreement (Science 37 Holdings, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after Except pursuant to the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the express terms of this Agreement Agreement, the Stockholder shall not (and the Business Combination Agreementshall cause its Affiliates not to), from and after without the date hereof and until prior written consent of the termination of this Agreement in accordance with its terms, such Stockholder shall notCompany, directly or indirectly, (i) create grant any rights of first offer or permit refusal or enter into any voting trust with respect to exist any Encumbrance, other than Permitted Encumbrances, on any of such the Stockholder’s Subject Shares, (ii) transfer, sell (including short sell), assign, gifttransfer, hedgetender, distributepledge, pledge encumber, grant a participation interest in, hypothecate or otherwise dispose of (includingincluding by gift, for the avoidance of doubtand whether by merger, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer offer, by testamentary disposition, by operation of law or otherwise, and including pursuant to a derivative transaction or through the Transfer by any other than Person of any equity interests in any direct or indirect holding company holding Subject Shares or through the Offer and, including, for the avoidance issuance and redemption by any such holding company of doubt, any transfer or entry into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (its securities) or consent to any of the foregoingforegoing (each, a “Transfer” (which defined term includes derivations of such defined term)), or cause to be Transferred, any of the Stockholder’s Subject Shares, other than a Transfer to an Affiliate of the Stockholder in connection with which such Affiliate agrees in writing to be bound by the terms of this Agreement and a copy of such agreement is delivered to the Company (a “Permitted Transfer”) and the Stockholder will remain liable for all obligations under this Agreement, (iii) otherwise permit any Liens to be created on any of the Stockholder’s Subject Shares, (iv) enter into any Contract with respect to any the direct or indirect Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit of the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of any of such Stockholder’s the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s the Subject Shares. Any action taken Shares or grant any proxy or power of attorney, or any other authorization or consent, with respect thereto that, in violation the case of any of the immediately preceding sentence activities in this clause (v), is inconsistent with this Agreement. The Stockholder hereby agrees that this Agreement and the obligations hereunder shall be null and void ab initio. Notwithstanding attach to the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only binding upon any Person to which legal or Beneficial Ownership shall pass, whether by operation of law or otherwise including its successors or permitted assigns and if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such the Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, including a sale by such the Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such the Stockholder’s Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement as the Stockholder for all purposes hereunder. The Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any equity interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement, which shall continue . Each Stockholder hereby agrees not to request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any or all of the Subject Shares and each Stockholder authorizes the Company to impose stop orders to prevent the Transfer of any of the Stockholder’s Subject Shares in full force and effect until valid termination violation of this Agreement Agreement. Notwithstanding the foregoing, if the Company’s annual meeting or any special meeting of the Stockholders occurs prior to the Effective Time and includes matters that are not addressed in accordance Article 1, nothing herein will prohibit the Stockholder from providing a customary proxy in favor of the Company or its officers, in connection with such annual meeting or special meeting or voting its termsSubject Shares at such annual or special meeting, in each case, to the extent not relating to matters that are not addressed in Article 1.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder, from and after the date hereof and until this Agreement is terminatedvalidly terminated in accordance with Section 5.1, such the Stockholder shall not, directly or indirectly, take other than for any action that would have the effect of preventing, materially delaying or materially impairing such Permitted Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectlyEncumbrances, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, Encumbrances on any of such Stockholder’s the Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s the Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract Contract, option or other arrangement or understanding with respect to any Transfer of such Stockholder’s the Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney attorney, or other authorization or consent in or with respect to any such Stockholder’s of the Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s the Subject Shares. Any Shares or (f) take any other action taken that in violation of any way would be reasonably expected to restrict, limit, impede, delay or interfere with the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion performance of such Stockholder’s obligations hereunder. The Company will not recognize, facilitate or give effect to any transfer in violation of this Section 4.1. The Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all on the books of the representations and warranties Company in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes violation of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur occurs (including, but not limited to, a sale by such the Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include includes any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, will take and hold such Subject Shares subject to all of the restrictions, obligationsliabilities, liabilities and rights under this Agreement, which shall will continue in full force and effect until valid termination of this Agreement in accordance with Section 5.1. The Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a Group for the purpose of taking any actions inconsistent with the transactions contemplated by this Agreement. Notwithstanding the foregoing, the Stockholder may make Transfers of its Subject Shares to (x) if the Stockholder is an entity, any controlled Affiliate, Subsidiary, partner, or member of the Stockholder or, if the Stockholder is a trust, the beneficiary or beneficiaries authorized or entitled to receive distributions from such trust, or (y) if the Stockholder is a natural person, solely for estate or tax planning purposes (A) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild or the spouse of any child, adopted child, grandchild or adopted grandchild of the Stockholder, (B) any trust, the trustees of which include only the Persons named in clause (A) and the beneficiaries of which include only the Persons named in clause (A), (C) any corporation, limited liability company or partnership, the stockholders, members or general or limited partners of which include only the Persons named in clauses (A), (B) or (C); provided, however, that in any such case, as a condition to the effectiveness of such Transfer, (1) each Person to which any of such Shares are Transferred has executed and delivered to the Company, Parent and Merger Sub a counterpart to this Agreement pursuant to which such Person is bound by all of the terms and provisions of this Agreement, and (2) this Agreement becomes the legal, valid, and binding agreement of such Person, enforceable against such Person in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar applicable laws affecting creditors’ rights generally and to general principles of equity.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder (including pursuant to Section 1.1 or Section 4.1) or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distributemortgage, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholder’s Equity Interests in the Company, including any Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Equity Interests in the Company, including any Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Equity Interests in the Company, including the Subject Shares or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect; provided, that the restrictions contained in this Section 4.2 shall not apply with respect to any transfer of the Subject Shares by a Stockholder pursuant to applicable Laws of descent and distribution; provided, further, that any such proposed transferee must agree in writing to take such Subject Shares subject to and to be bound by the terms and conditions of this Agreement applicable to such Subject Shares. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares (a) to any wholly-owned Subsidiary of such Stockholder, in which case the Subject Shares shall continue to be bound by this Agreement; provided, that, any such transferee agrees in writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer, or (b) as Parent may agree in writing in its sole discretion. If so requested by Parent, such Stockholder agrees that the Subject Shares shall bear a legend stating that such Subject Shares are subject to this Agreement (provided, such legend shall be removed upon the valid termination of this Agreement).
(b) At all times until the Expiration Date, in furtherance of this Agreement, such Stockholder shall, and hereby does authorize and instruct the Company or its counsel to notify the Company’s transfer agent that, from the date hereof until the Expiration Date, there is a stop transfer order with respect to all of the Subject Shares of such Stockholder (and that this Agreement places limits on the voting and transfer of such Shares until the Expiration Date); provided, however, that if this Agreement shall have been terminated in accordance with its terms, the foregoing authorization and instruction shall be null and void and shall have no further force or effect.
(c) For the avoidance of doubt, no forfeiture of any Shares, or net settlement or purchase by the Company to satisfy tax withholding obligations, shall be deemed to be a breach of any provision hereof.
Appears in 1 contract
Samples: Merger Agreement (GigPeak, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes including pursuant to Section 1.1 or Section 4.1) or under the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any or all of such Stockholder’s Subject SharesShares and, if applicable, Warrants and Company Stock Options, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholder’s Equity Interests in the Company, including any Subject Shares, Warrants and Company Stock Options, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of any or all of such Stockholder’s Subject Shares and, if applicable, Warrants or Company Stock Options, or any legal right or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any or all of such Stockholder’s Subject Shares and, if applicable, Warrants or Company Stock Options, (v) deposit or permit the deposit of any or all of such Stockholder’s Equity Interests in the Company, including any Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Equity Interests, including the Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s Subject Sharesobligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any or all of such Stockholder’s Subject Shares in the and, if applicable, Warrants and Company Stock Options shall occur (including, but not limited toif applicable, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares and, if applicable, Warrants and Company Stock Options subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares and, if applicable, Warrants and Company Stock Options (a) to any “Permitted Transferee” (as defined below), in which case the Subject Shares and, if applicable, Warrants and Company Stock Options shall continue to be bound by this Agreement in accordance with its terms.and provided that any such
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminatedvalidly terminated in accordance with Section 5.2, such the Stockholder shall not, directly or indirectly, take any action that would have without the effect prior written consent of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectlyParent, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such the Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distributelend, pledge or otherwise dispose of (including, for the avoidance of doubtincluding by sale or merger, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer, includingby testamentary disposition, for the avoidance by liquidation or dissolution, by dividend or distribution, by operation of doubtLaw or otherwise), any transfer either voluntarily or entry involuntarily, or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such the Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such the Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) subject to the Conditional Proxy granted under Section 1.3, grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such of the Stockholder’s Subject Shares or (except for a proxy provided to management of the Company not in violation of Section 1.3 and customary arrangements with the Stockholder’s prime broker and/or custodian), (v) deposit or permit the deposit of any of such the Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such the Stockholder’s Subject SharesShares (except for customary arrangements with the Stockholder’s prime broker and/or custodian), (vii) enter into any Contract or otherwise take any other action that is inconsistent with, or would restrict, limit or interfere with the performance of, the Stockholder’s obligations hereunder in any material respect or otherwise make any representation or warranty of the Stockholder herein untrue or incorrect in any material respect as though made on the date of such Contract or action or (viii) knowingly approve or consent to any of the forgoing. Any action taken in violation of the immediately preceding sentence foregoing shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such the Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such the Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2.
(b) Notwithstanding the foregoing, (i) the Stockholder, if the Stockholder is an individual, may Transfer its terms.Subject Shares (A) to any member of the Stockholder’s immediate family, (B) to a trust for the sole benefit of the Stockholder or any member of the Stockholder’s immediate family, the sole trustees of which are the Stockholder or any member of the Stockholder’s immediate family (or any similar Transfer for estate planning purposes), (C) by will or under the laws of intestacy upon the death of the Stockholder, (D) to any charitable organization, (E) by effecting a “net exercise” of a Company Option or a “net settlement” of a Company RSU or Company PSU in which the Company holds back shares of Company Common Stock otherwise issuable either to pay the exercise price upon the exercise of a Company Option and/or to satisfy the Stockholder’s tax withholding obligation upon the exercise of a Company Option or settlement of a Company RSU or Company PSU, or (F) in connection with a broker-assisted sale in the open market with respect to (x) the cashless exercise of a Company Option expiring during the term of this Agreement or (y) exercise of a Company Option or settlement or vesting of a Company RSU or Company PSU, in each case either to pay the exercise price upon the exercise of a Company Option and/or to satisfy the Stockholder’s tax withholding obligation upon the exercise of a Company Option or settlement of a Company RSU or Company PSU and (ii) the Stockholder, if the Stockholder is an entity, may Transfer its Subject Shares to any Affiliate of the Stockholder or to one or more partners or members of the Stockholder; provided, that a Transfer referred to in this
Appears in 1 contract
Samples: Tender and Support Agreement (Ono Pharmaceutical Co., Ltd.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes including pursuant to Section 1.1 or Section 4.1) or under the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any or all of such Stockholder’s Subject SharesShares and, if applicable, Company Options, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholder’s Company Securities, including any Subject SharesShares and Company Options, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of any or all of such Stockholder’s Subject Shares and, if applicable, Company Options, or any legal right or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any or all of such Stockholder’s Subject Shares or and, if applicable, Company Options, (v) deposit or permit the deposit of any or all of such Stockholder’s Company Securities, including any Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Company Securities, including the Subject Shares, or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s Subject Sharesobligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any or all of such Stockholder’s Subject Shares in the and, if applicable, Company Options shall occur (including, but not limited toif applicable, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares and, if applicable, Company Options subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Company Securities for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares and, if applicable, Company Options (a) to any “Permitted Transferee” (as defined below), in which case the Subject Shares and, if applicable, Company Options shall continue to be bound by this Agreement and provided that any such Permitted Transferee agrees in accordance writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer; (b) with respect to any Company Options which expire on or prior to the expiration of the Offer, to the Company for purpose of a net exercise permitted under the documents related to such Company Options (pursuant to which any Common Stock issued by the Company would be Subject Shares); or (c) as Parent may otherwise agree in writing in its termssole discretion. If so requested by Parent, such Stockholder agrees that the Subject Shares and, if applicable, Company Options shall bear a legend stating that the respective Subject Shares, Company Options are subject to this Agreement, provided such legend shall be removed upon the valid termination of this Agreement. A “Permitted Transferee” means, with respect to any Stockholder, (i) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild, or the spouse of any child, adopted child, grandchild, or adopted grandchild of such Stockholder, (ii) any charitable organization described in Section 170(c) of the Code, (iii) any trust the beneficiaries of which include only the Persons named in clause (i) or (ii) of this definition, or (iv) any corporation, limited liability company, or partnership, the stockholders, members, and general or limited partners of which include only the Persons named in clause (i) or (ii) of this definition.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer set forth in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract contract, option or other agreement, arrangement or understanding with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (ve) deposit take or permit any other action, in each case, that would in any way restrict, limit or interfere with the deposit of any performance of such Stockholder’s Subject Shares into a voting trust obligations hereunder or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initiotransactions contemplated hereby. Notwithstanding the foregoing, any Stockholder may make a Transfer all of its Subject Shares or any portion right or interest therein, if such Stockholder is an individual or a trust, to any member of the Stockholder’s family, to a beneficiary or to a trust for the benefit of the Stockholder or any member of the Stockholder’s family, including in connection with the death of such Stockholder’s Subject Shares to Stockholder or a Permitted Transferee (as defined below) (beneficiary, provided that in connection with any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, the transferee agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and written document to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee Stockholder in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes including pursuant to Section 1.1 or Section 4.1) or under the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrancesthe Transfer Restrictions, on any or all of such the Stockholder’s Subject SharesShares or Company Common Stock Options, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend, distribution, or otherwise tendering any such Subject Shares into any tender otherwise) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such the Stockholder’s Subject SharesShares and Company Common Stock Options, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such any or all of the Stockholder’s Subject Shares and Company Common Stock Options, or any legal right or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any or all of such Stockholder’s Subject Shares or and Company Common Stock Options, (ve) deposit or permit the deposit of any or all of such the Stockholder’s Subject Shares and Company Common Stock Options, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Subject Shares and Company Common Stock Options, or (f) take or permit any other action that would reasonably be expected to in any way restrict, limit or interfere with the performance of such Stockholder’s Subject Sharesobligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect. Any voluntary action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any or all of such Stockholder’s Subject Shares in the and, if applicable, such Stockholder’s Company Common Stock Options shall occur (including, but not limited toif applicable, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares and Company Common Stock Options subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares and Company Common Stock Options (a) with respect to any Company Common Stock Options that expire on or prior to the Expiration Date, to the Company for purposes of a net exercise permitted under the documents related to such Company Common Stock Options (pursuant to which any Common Stock issued by the Company would be Subject Shares); or (b) as Parent may otherwise agree in accordance with writing in its termssole discretion.
Appears in 1 contract
Samples: Tender and Support Agreement (Monomoy Capital Partners II, L.P.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after 2.1 From the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsExpiration Time, such each Stockholder shall not, directly or indirectly, (i) create or permit agrees not to exist any Encumbrance, other than Permitted Encumbrances, on Transfer any of such Stockholder’s Subject Covered Shares; provided, however, (iii) transferthat such Stockholder may, sellif such Stockholder is an individual, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering a) Transfer any such Subject Covered Shares into to any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry into any derivative arrangement with respect to (collectively, “Transfer”), any members of such Stockholder’s Subject Sharesimmediate family, or to a trust solely for the benefit of such Stockholder or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer member of such Stockholder’s Subject immediate family and (b) Transfer any Covered Shares by will or any legal or beneficial interest therein, (iv) grant or permit under the grant laws of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit or permit intestacy upon the deposit of any death of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any , but in the case of such Stockholder’s Subject Shares. Any action taken in violation each of the immediately preceding sentence shall be null foregoing clauses (a) and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”b), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to of such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Sharestransferees agree in writing, prior to the date of such Transfer, agrees in a signed writing form reasonably satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and Parent, to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) obligations set forth herein with respect to any such Covered Shares as if they were a Stockholder that is a legal Personhereunder, any whollywith Parent named as an express third-owned subsidiary party beneficiary of such Personagreements (any such Transfer, a “Permitted Transfer”); and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If if any involuntary Transfer of any of such Stockholder’s Subject Covered Shares in the Company shall occur (including, but not limited to, including a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Covered Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination the Expiration Time. Any action taken in violation of the immediately preceding sentence shall, to the fullest extent permitted by Law, be null and void ab initio.
2.2 In furtherance of this Agreement, such Stockholder hereby authorizes and instructs the Company to, and the Company hereby agrees to, cause the Company’s transfer agent or other registrar to enter stop transfer instructions and implement stop transfer procedures with respect to all of the Covered Shares or other capital stock or any securities convertible into or exercisable or exchangeable for Covered Shares or other capital stock of the Company owned or held (of record or beneficially) by the Stockholder during the term of this Agreement (for the avoidance of doubt, until the Expiration Time). In the event that the Stockholder intends to undertake a Permitted Transfer during term of this Agreement of any of the Covered Shares, the Stockholder shall provide prior notice thereof to the Company and Parent and shall authorize the Company to, or authorize the Company to instruct its transfer agent to, (i) lift any stop transfer order in accordance with respect of the Covered Shares to be so Transferred in order to effect such Permitted Transfer only upon receipt of certification by Parent and the Company that the written agreement to be entered into by the transferee agreeing to be bound by this Agreement pursuant to Section 2.1 hereof is satisfactory to Parent and (ii) re-enter any stop transfer order in respect of the Covered Shares to be so Transferred upon completion of the Permitted Transfer.
2.3 From the date hereof until the Expiration Time, each Stockholder shall not, directly or indirectly, take any action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect or have the effect of preventing, impairing or materially delaying such Stockholder from performing any of its termsobligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, impairing or materially delaying, the consummation of the Merger, the Merger Transactions or the performance by the Company of its obligations under the Merger Agreement or the Convertible Note Purchase Agreement.
Appears in 1 contract
Samples: Voting and Support Agreement (Berkshire Grey, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.02, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than a Permitted EncumbrancesEncumbrance, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (f) take (or fail to take) or permit any other action that would in any way restrict, limit, impede, delay or interfere with the performance of such Stockholder’s obligations hereunder in any material respect, otherwise make any representation or warranty of such Stockholder herein untrue or incorrect, or have the effect of preventing or disabling such Stockholder from performing any of such Stockholder’s obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, (x) any Stockholder that is an individual may Transfer all or Subject Shares (i) to any portion member of such Stockholder’s immediate family, (ii) to a trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, (iii) by will or under the laws of intestacy upon the death of such Stockholder or (iv) to any charitable organization and (y) any Stockholder that is an entity may Transfer Subject Shares to a Permitted Transferee (as defined below) (any Affiliate of such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, Stockholder; provided that a Transfer described transfer referred to in clauses (x) and (y) of this sentence shall be a Permitted Transfer permitted only if (xA) all of the representations and warranties in this Agreement Article II with respect to the transferee of such Stockholder Subject Shares would be true and correct in all material respects upon such Transfer and (y) the Permitted Transferee of such Subject SharesTransfer, prior subject to the date necessary adjustment as a result of such Transfer, agrees in a signed writing satisfactory (B) the transferee shall have executed and delivered to Parent (acting reasonably) and Purchaser a counterpart to accept this Agreement pursuant to which such Subject Shares subject to transferee shall be bound by all of the terms and provisions of this Agreement and to be bound by the terms of this Agreement as agree and acknowledge that such Person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, Agreement and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (iiC) such Stockholder’s estate upon Transfer occurs no later than three (3) Business Days prior to the death end of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersAgreement Period. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, including a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until the valid termination of this Agreement in accordance with Section 5.02. Each Stockholder agrees that such Stockholder shall not, and shall cause each of such Stockholder’s Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of such Stockholder’s Subject Shares as Parent may agree in writing in its termssole discretion. Each Stockholder shall notify Parent as promptly as practicable (and in any event within 48 hours after receipt) in writing of the number of any additional Shares of which such Stockholder acquires beneficial or record ownership on or after the date hereof.
Appears in 1 contract
Samples: Tender and Support Agreement (Applied Genetic Technologies Corp)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such StockholderShareholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderShareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such StockholderShareholder’s Subject Shares or any legal or beneficial or other interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such StockholderShareholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such StockholderShareholder’s Subject Shares into a voting trust or enter into a voting agreement agreement, understanding or arrangement with respect to any of such StockholderShareholder’s Subject Shares, or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of Shareholder’s obligations hereunder in any material respect or otherwise make any representation or warranty of Shareholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Shareholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Securities on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, any Stockholder Shareholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family to any member of such StockholderShareholder’s immediate family, (ii) such Stockholderto a trust for the sole benefit of Shareholder or any member of Shareholder’s estate immediate family, the sole trustees of which are Shareholder or any member of Shareholder’s immediate family, (iii) by will or under the laws of intestacy upon the death of such StockholderShareholder, (iv) to a charitable organization, or (v) to any other Shareholder as a gift or otherwise; provided that any such Transfer referred to in clauses (i) through (iii) any trust or other Person established byshall be permitted only if the transferee shall have executed and delivered to Parent and Merger Sub, or on behalf ofa joinder to this Agreement, in a form reasonably acceptable to Parent and Merger Sub and delivering such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes executed joinder to Parent and controlled Merger Sub as soon as practicable after such Transfer, pursuant to which such transferee shall be bound by all of the terms and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersprovisions of this Agreement. If any involuntary Transfer of any of such StockholderShareholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser Merger Sub at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable LawLegal Requirements, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms. Notwithstanding the foregoing, Shareholder may make Transfers of its Subject Shares as Parent may agree in writing in its sole discretion.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder, under the Merger Agreement or the Rollover Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer terminated in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsSection 5.2, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any or all of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend, distribution or otherwise tendering any such Subject Shares into any tender otherwise) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any of such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (vi) take or permit any other action that would reasonably be expected to in any way restrict, limit, interfere with or delay the performance of such Stockholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any or all of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited toif applicable, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares Shares, subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance Agreement. Such Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with its terms.respect to any Company securities for the purpose of opposing or
Appears in 1 contract
Samples: Tender and Support Agreement (ConvergeOne Holdings, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminatedvalidly terminated in accordance with Section 5.2, such Stockholder Holder shall not, directly or indirectly, take any action that would have without the effect prior written consent of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectlyParent, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such StockholderHolder’s Subject SharesSecurities, (iib) transfer, sell, assign, gift, hedge, distributelend, pledge or otherwise dispose of (including, for the avoidance of doubtincluding by sale or merger, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer, includingby testamentary disposition, for the avoidance by liquidation or dissolution, by dividend or distribution, by operation of doubtlaw or otherwise), any transfer either voluntarily or entry involuntarily, or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderHolder’s Subject SharesSecurities, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract contract with respect to any Transfer of such StockholderHolder’s Subject Shares Securities or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such StockholderHolder’s Subject Shares or Securities, (ve) deposit or permit the deposit of any of such StockholderHolder’s Subject Shares Securities into a voting trust or enter into a voting agreement or arrangement with respect to any of such StockholderHolder’s Subject SharesSecurities, (f) enter into any contract that is materially inconsistent with, or which would materially restrict, impair or interfere with the performance of Hxxxxx’s obligations hereunder, or (g) approve or consent to any of the foregoing. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such StockholderHolder’s Subject Shares Securities in the Company shall occur (including, but not limited to, a sale by such StockholderHolder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares Securities subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2. Notwithstanding the foregoing, Holder may make Transfers of its termsSubject Securities as Parent may agree in writing in its sole discretion. Notwithstanding the foregoing, Holder may Transfer Subject Securities (i) to any Affiliate of Holder, (ii) to any custodian or nominee for the purpose of the Subject Securities for the account of Holder or (iii) in connection with the tender of the Subject Securities in the Offer; provided that (1) such Transfer shall be permitted only if all of the representations and warranties in this Agreement with respect to Holder would be true and correct in all material respects upon the completion of such Transfer with respect the transferee of the Transfer and (2) the transferee of the Transfer contemplated in the foregoing clause (i) shall have, prior to any such Transfer, executed and delivered to Parent and Purchaser a counterpart to this Agreement pursuant to which such transferee shall be bound by all of the terms and provisions of this Agreement and agree and acknowledge that such Person shall constitute a “Holder” for all purposes of this Agreement. Hxxxxx agrees that it shall not become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement. Holder shall notify Parent as promptly as practicable in writing the number of any additional shares of Company Common Stock (or any securities convertible into or exercisable or exchangeable or redeemable for Company Common Stock) of which Holder acquires record or beneficial ownership on or after the date hereof (other than any Shares acquired pursuant to the exercise of the Holder Warrant pursuant to the terms hereof).
Appears in 1 contract
Samples: Tender and Support Agreement (Blue Apron Holdings, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer validly terminated in accordance with Section 5.2, the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLiens, other than Permitted EncumbrancesLiens arising hereunder or as may be applicable under the Securities Act or other applicable securities Laws, on all or any portion of such Stockholder’s the Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), all or any portion of such Stockholder’s the Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s the Subject Shares Shares, or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to all or any such Stockholder’s portion of the Subject Shares or Shares, (ve) deposit or permit the deposit of all or any portion of such Stockholder’s the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior or (f) knowingly take any other action that would restrict, limit or interfere in any material respect with the performance of the Stockholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of the Stockholder herein untrue or incorrect in any material respect or seek to do or solicit any of the foregoing actions. Without limiting the generality of the foregoing, during the time this Agreement is in effect, the Stockholder shall not tender, agree to tender or cause or permit to be tendered all or any portion of the Subject Shares into or otherwise in connection with any tender or exchange offer, except pursuant to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersOffer. If any involuntary Transfer of all or any portion of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited toif applicable, a sale by such the Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares Shares, subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until the valid termination of this Agreement in accordance with Section 5.2. The Stockholder agrees that it shall not, and shall cause each of such Stockholder’s Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any securities in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the Transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, the Stockholder may make Transfers of Subject Shares, (i) to any “Permitted Transferee” (as defined below), in which case any such transferred Subject Shares shall continue to be bound by this Agreement and provided that any such Permitted Transferee agrees in writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer, (ii) by will or the laws of intestacy, or (iii) as Parent may otherwise agree in writing in its termssole discretion. A “Permitted Transferee” means, with respect to any Stockholder, (A) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild, or the spouse of any child, adopted child, grandchild, or adopted grandchild of the Stockholder, (B) any charitable organization described in Section 170(c) of the Code, (C) any trust, the beneficiaries of which include only the Stockholder and/or the Persons named in clause (A) or (B) of this definition, (D) any corporation, limited liability company, or partnership, the stockholders, members, and general or limited partners of which include only the Stockholder and/or the Persons named in clause (A) or (B) of this definition, (E) if the Stockholder is an entity, any Affiliate, Subsidiary, partner or member of Stockholder, or (F) if the Stockholder is a trust, the beneficiary or beneficiaries authorized or entitled to receive distributions from such trust.
Appears in 1 contract
Samples: Tender and Support Agreement (Science 37 Holdings, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (iib) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject SharesShares or (f) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or Subject Shares (i) to any portion member of such Stockholder’s Subject Shares immediate family, (ii) to a Permitted Transferee trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, (iii) by will or under the laws of intestacy upon the death of such Stockholder or (iv) to any other Stockholder as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”)gift or otherwise, provided, that a Transfer described transfer referred to in clause (i) through (iii) of this sentence shall be a Permitted Transfer permitted only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, transferee agrees in writing, in a signed writing satisfactory manner reasonably acceptable to Parent (acting reasonably) Parent, to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as and to agree and acknowledge that such Person shall constitute a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of its Subject Shares as Parent may agree in accordance with writing in its termssole discretion.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as expressly provided hereunder, from pursuant to the Merger Agreement or with the Company’s prior written consent, which may be withheld in the Company’s sole and after the date hereof and until this Agreement is terminatedabsolute discretion, such Stockholder shall notno Shareholder shall, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.:
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on Encumbrance of any of such Stockholder’s nature whatsoever with respect to any Subject Shares, Securities;
(ii) transfer, sell, assign, tender, gift, hedge, distribute, pledge or otherwise dispose of (includingeach, for the avoidance of doubt, by depositing, submitting a “Transfer”) or otherwise tendering any such Subject Shares enter into any tender option, derivative, hedging or exchange offer other than the Offer and, including, for the avoidance agreement or arrangement or understanding (including any profit-sharing arrangement or transfer of doubtany economic interest) with respect to, any transfer Subject Securities (unless any transferee or entry into any derivative arrangement recipient who receives Voting Securities as a result of such transaction shall have executed and delivered a Voting and Support Agreement with terms and in a form substantially identical to this Agreement with respect to (collectively, “Transfer”such Voting Securities or otherwise becomes a party to or bound by this Agreement), any of such Stockholder’s Subject Shares, or any right right, title or interest therein (including any right or power to vote) or agree to do or consent to any of the foregoing), ;
(iii) enter into (or caused to be entered into) any Contract with respect to any Transfer of such Stockholder’s any of the Subject Shares or Securities unless any legal or beneficial interest therein, Transfer will comply with the conditions set forth in subsection (ii) above;
(iv) grant or permit the grant of any Person under Shareholders’ control, of any proxy, power-of-attorney attorney, voting trust, or other authorization authorization, arrangement or consent in or with respect to the voting of any such Stockholder’s of the Subject Shares or Securities (other than set forth in this Agreement);
(v) deposit or permit the deposit of any of such Stockholder’s the Subject Shares Securities into a voting trust or enter into a voting agreement or similar arrangement with respect to any of such Stockholder’s the Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee Securities (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described other than set forth in this sentence shall be a Permitted Transfer only if Agreement);
(xvi) all of the representations and warranties in this Agreement seek to influence any Person with respect to such Stockholder the voting of, any Fresh Vine Common Stock in connection with the Merger or any other transaction, other than to recommend that shareholders of Parent vote in favor of approval of the Merger and adoption of the Merger Agreement; or
(vii) take or permit any other action that would be true and correct upon expected to adversely affect such Transfer and (y) the Permitted Transferee of such Subject Shares, prior Shareholder’s ability to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and perform its obligations hereunder.
(b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company Securities shall occur (including, but not limited to, a sale by such Stockholder’s trustee including in any bankruptcy, bankruptcy or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, including any subsequent transferees) shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares Securities subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement is terminated in accordance with its termsSection 5.02.
Appears in 1 contract
Samples: Voting and Support Agreement (Fresh Vine Wine, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes or under the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsTermination Time, such Stockholder shall not, directly or indirectly, (ia) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any of such Stockholder’s Subject Shares, (iib) transfer, sell (including short sell), assign, gift, hedge, distributepledge, pledge grant an option or other a participation interest in, hypothecate or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing)therein, (iiic) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (ivd) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (ve) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, (f) take or permit any other action that would in any way restrict, limit, impede, delay or interfere with the compliance with such Stockholder’s obligations hereunder in any material respect, or have the effect of preventing or disabling such Stockholder from complying with any of its obligations under this Agreement or (g) agree or commit to take any of the actions referred to in the foregoing clauses (a) through (f). Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Each Stockholder hereby authorizes Parent to direct the Company to impose stop orders to prevent the Transfer of any Subject Shares on the books of the Company in violation of this Agreement. Notwithstanding the foregoing, (x) any Stockholder that is an individual may Transfer Subject Shares (i) to any member of such Stockholder’s immediate family, (ii) to a trust for the sole benefit of such Stockholder or any member of such Stockholder’s immediate family, the sole trustees of which are such Stockholder or any member of such Stockholder’s immediate family, (iii) in connection with the tender of shares in the Offer as provided hereunder and under the Merger Agreement, (iv) to any custodian or nominee for the purpose of holding such Subject Shares for the account of such Stockholder, (v) with Parent’s prior written consent, (vi) to any charitable foundation or organization, including donor advised funds or (vii) by will or under the laws of intestacy upon the death of such Stockholder and (y) any Stockholder may Transfer all or Subject Shares to any portion Affiliate (as defined in the Merger Agreement) of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (; provided that in any such case, such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer permitted only if (x) such transferee shall be bound by all of the representations terms and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms provisions of this Agreement and to be bound by the terms of this Agreement as agree and acknowledge that such Person shall constitute a “Stockholder” Stockholder for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination the Termination Time. Each Stockholder agrees that it shall not, and shall cause each of its affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement. Each Stockholder shall notify Parent as promptly as reasonably practicable in writing of the number of any additional shares of Company Common Stock of which such Stockholder acquires record or beneficial ownership on or after the date hereof. For the avoidance of doubt, any purchase or repurchase by any Stockholder of Company Common Stock shall not constitute a Transfer for purposes of this Agreement in accordance with its termsAgreement.
Appears in 1 contract
Samples: Tender and Support Agreement (Ruths Hospitality Group, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as expressly provided hereunder or pursuant to Article I of the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer terminated in accordance with Section 5.2, the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) grant or create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesLiens, on any or all of such Stockholder’s the Subject Shares, (ii) transfer, sell, assign, tender, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend or otherwise tendering any such Subject Shares into any tender distribution) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s the Subject Shares, or any right right, title or interest therein (including any right or power to vote to which the Stockholder may be entitled) (or consent to any of the foregoing), (iii) enter into (or caused to be entered into) any Contract with respect to any Transfer of such Stockholder’s the Subject Shares or any legal or beneficial interest thereinShares, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s of the Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s the Subject Shares into a voting trust or enter into a voting agreement or arrangement similar arrangement, commitment or understanding with respect to any of such the Subject Shares or (vi) take or permit any other action that would reasonably be expected to prevent or materially restrict, disable or delay the consummation by the Stockholder of the transactions contemplated by this Agreement or otherwise adversely impact the Stockholder’s ability to perform its obligations hereunder in any material respect. Notwithstanding the foregoing, (x) direct or indirect Transfers of equity or other interests in the Stockholder by its equityholders is not prohibited by this Section 4.1 and (y) the Stockholder may make Transfers of Subject SharesShares as Parent may, in its sole discretion, agree in writing. Any action taken Transfer in violation of the immediately preceding sentence this Section 4.1 shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement is terminated in accordance with its termsSection 5.2.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from From and after the date hereof and until this Agreement is terminatedthe Termination Date, such the Stockholder shall not, directly or indirectly, take any action that would have without the effect prior written consent of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectlyEDR, (i) create or permit to exist any Encumbrance, Encumbrance (other than Permitted Encumbrances, Restrictions) on any of such Stockholder’s the Subject Shares, (ii) transfer, sell, assign, gift, hedge, distributelend, pledge or otherwise dispose of (including, for the avoidance of doubtincluding by sale or merger, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andoffer, includingby testamentary disposition, for the avoidance by liquidation or dissolution, by dividend or distribution, by operation of doubtLaw or otherwise), any transfer either voluntarily or entry involuntarily, or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s the Subject Shares, or any right right, title or interest therein (including any right or power to vote to which the Stockholder may be entitled) (or consent to any of the foregoing), (iii) enter into (or cause to be entered into) any Contract with respect to any Transfer of such Stockholder’s the Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s the Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of the Subject Shares or (vi) approve or consent to any of the foregoing; provided, however, nothing herein shall prohibit an Exempt Transfer. For purposes of this Agreement, an “Exempt Transfer” means any Transfer of the Subject Shares (1) by will or intestacy, (2) by operation of Law, such Stockholder’s as pursuant to a qualified domestic order, divorce settlement, divorce decree or bankruptcy, insolvency or similar proceedings or (3) in connection with a foreclosure under the Prepaid Forward Contract (the Persons who are Transferred Subject SharesShares pursuant to an Exempt Transfer, the “Exempt Transferees”); provided that in the case of a transfer pursuant to clauses (1) through (3), (A) prior to such Transfer becoming effective, such transferee will execute a joinder to this Agreement in form and substance reasonably satisfactory to EDR and which shall bind such transferee to all of the obligations of a Stockholder herein (including Article IV) and (B) the transferor Stockholder shall remain liable for any failure of such transferee to comply with or perform its obligations under this Agreement. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family members. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder (including pursuant to Section 1.1 or Section 4.1) or under the Stock Purchase Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, Lien other than Permitted Encumbrances, restrictions imposed by Applicable Law or pursuant to this Agreement on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distributemortgage, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Subject Shares or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect; provided, that the restrictions contained in this Section 1.2(a) shall not apply with respect to any transfer of the Subject Shares by a Stockholder pursuant to applicable Laws of descent and distribution; provided, further, that any such proposed transferee must agree in writing to take such Subject Shares subject to and to be bound by the terms and conditions of this Agreement applicable to such Subject Shares. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares (a) to any wholly-owned Subsidiary of such Stockholder, in which case the Subject Shares shall continue to be bound by this Agreement (provided, that any such transferee agrees in writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer) or (b) as the Seller may agree in writing in its sole discretion. If so requested by the Seller, such Stockholder agrees that the Subject Shares shall bear a legend stating that such Subject Shares are subject to this Agreement (provided, such legend shall be removed upon the valid termination of this Agreement).
(b) At all times until the Expiration Date, in furtherance of this Agreement, such Stockholder shall, and hereby does authorize and instruct the Seller or its counsel to notify the Seller’s transfer agent that, from the date hereof until the Expiration Date, there is a stop transfer order with respect to all of the Subject Shares of such Stockholder (and that this Agreement places limits on the voting and transfer of such Shares until the Expiration Date); provided, however, that (i) if the Stock Purchase Agreement is terminated, pursuant to its terms, prior to the Closing, (ii) if the Seller Board of Directors shall have made an Adverse Recommendation change (solely in connection with a Superior Proposal), (iii) if this Agreement shall have been terminated in accordance with its termsterms or (iv) immediately following the Closing, the foregoing authorization and instruction shall be null and void and shall have no further force or effect.
Appears in 1 contract
Samples: Support Agreement (EMRISE Corp)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from From and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer terminated in accordance with the terms of this Agreement and the Business Combination AgreementSection 5.2, subject to Section 4.1(b), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any EncumbranceLiens, other than Permitted EncumbrancesShare Liens, on any or all of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend, distribution or otherwise tendering any such Subject Shares into any tender otherwise) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any of such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (vi) take or permit any other action that would reasonably be expected to in any way restrict, limit, interfere with or delay the performance of such Stockholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any or all of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited toif applicable, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares Shares, subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its controlled Affiliates not to, and shall not encourage, direct or instruct each of its non-controlled Affiliates to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Company securities for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement.
(b) Notwithstanding the foregoing Section 4.1(a), such Stockholder may make Transfers of Shares (x) to any “Permitted Transferee” (as defined below), in which case the Shares shall continue to be bound by this Agreement and provided that any such Permitted Transferee agrees in accordance writing to be bound by the terms and conditions of this Agreement with respect to such Shares that are subject to such Transfer prior to (or, in the case of a Stockholder’s death or other involuntary transfer, as soon as practicable after) the consummation of any such Transfer, or (y) as Parent may otherwise agree in writing in its termsreasonable discretion. A “Permitted Transferee” means, with respect to any Stockholder, (I) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild, or the spouse of any child, adopted child, grandchild, or adopted grandchild of such Stockholder, (II) any charitable organization described in Section 170(c) of the Code, (III) any trust, the beneficiaries of which include only the Persons named in clause (I) or (II) of this definition, (IV) any corporation, limited liability company, or partnership, the stockholders, members, and general or limited partners of which include only the Persons named in clause (I) or (II) of this definition, or (V) in the case of a Stockholder’s death, the estate of such Stockholder or the executor, administrator, or other representative of such estate.
Appears in 1 contract
Samples: Tender and Support Agreement (Dover Motorsports Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from From and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer terminated in accordance with the terms of this Agreement and the Business Combination AgreementSection 5.2, subject to Section 4.1(b), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesShare Liens, on any or all of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend, distribution or otherwise tendering any such Subject Shares into any tender otherwise) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any of such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares, or (vi) take or permit any other action that would reasonably be expected to in any way restrict, limit, interfere with or delay the performance of such Stockholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any or all of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited toif applicable, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares Shares, subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its controlled Affiliates not to, and shall not encourage, direct or instruct each of its non-controlled Affiliates to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Company securities for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement.
(b) Notwithstanding the foregoing Section 4.1(a), such Stockholder may make Transfers of Shares (x) to any “Permitted Transferee” (as defined below), in which case the Shares shall continue to be bound by this Agreement and provided that any such Permitted Transferee agrees in accordance writing to be bound by the terms and conditions of this Agreement with respect to such Shares that are subject to such Transfer prior to the consummation of any such Transfer, or (y) as Parent may otherwise agree in writing in its termsreasonable discretion. A “Permitted Transferee” means, with respect to any Stockholder, (I) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild, or the spouse of any child, adopted child, grandchild, or adopted grandchild of such Stockholder, (II) any charitable organization described in Section 170(c) of the Code, (III) any trust, the beneficiaries of which include only the Persons named in clause (I) or (II) of this definition, (IV) any Affiliate of such Stockholder, including any private equity fund affiliated with or managed by Stockholder or its fund, managed account or other similar vehicle Affiliates (and any investment vehicles wholly owned by such fund) and (if applicable) any direct or indirect general partner, managing member or similar control Person of any such Person or (V) any corporation, limited liability company, or partnership, the stockholders, members, and general or limited partners of which include only the Persons named in clause (I) or (II) of this definition.
Appears in 1 contract
Samples: Tender and Support Agreement (Papa Murphy's Holdings, Inc.)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees thatExcept as provided hereunder (including pursuant to Section 1.1 or Section 4.1) or under the Merger Agreement, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distributemortgage, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such Stockholder’s Equity Interests in the Company, including any Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such Stockholder’s Equity Interests in the Company, including any Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Equity Interests in the Company, including the Subject Shares or (vi) take or permit any other action that would in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect; provided, that the restrictions contained in this Section 4.2 shall not apply with respect to any transfer of the Subject Shares by a Stockholder pursuant to applicable Laws of descent and distribution; provided, further, that any such proposed transferee must agree in writing to take such Subject Shares subject to and to be bound by the terms and conditions of this Agreement applicable to such Subject Shares. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any initio and such Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Stockholder agrees that it shall not, and shall cause each of its Affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in the Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, such Stockholder may make Transfers of Subject Shares (a) to any wholly-owned Subsidiary of such Stockholder, in which case the Subject Shares shall continue to be bound by this Agreement; provided, that, any such transferee agrees in writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer, or (b) as Parent may agree in writing in its sole discretion. If so requested by Parent, such Stockholder agrees that the Subject Shares shall bear a legend stating that such Subject Shares are subject to this Agreement (provided, such legend shall be removed upon the valid termination of this Agreement).
(b) At all times until the Expiration Date, in furtherance of this Agreement, such Stockholder shall, and hereby does authorize and instruct the Company or its counsel to notify the Company’s transfer agent that, from the date hereof until the Expiration Date, there is a stop transfer order with respect to all of the Subject Shares of such Stockholder (and that this Agreement places limits on the voting and transfer of such Shares until the Expiration Date); provided, however, that if this Agreement shall have been terminated in accordance with its terms, the foregoing authorization and instruction shall be null and void and shall have no further force or effect.
(c) For the avoidance of doubt, no forfeiture of any Shares, or net settlement or purchase by the Company to satisfy tax withholding obligations, shall be deemed to be a breach of any provision hereof.
Appears in 1 contract
Samples: Tender and Support Agreement (Integrated Device Technology Inc)
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares (other than such Stockholder’s Excluded Securities) into the Offer in accordance with the terms of this Agreement and the Business Combination Merger Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its termsis terminated, such Stockholder shall not, directly or indirectly, (i) create or permit to exist any Encumbrance, other than Permitted Encumbrances, on any of such Stockholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer andOffer), including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such Stockholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), or (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Stockholder’s Subject Shares or (v) deposit or permit the deposit of any of such Stockholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Stockholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder the Stockholders may Transfer all or any portion not more than 65,000 of such Stockholder’s Stockholders’ Subject Shares Shares, in the aggregate, in one or more charitable contributions to a Permitted Transferee no more than two (as defined below2) transferees, in the aggregate, but solely if and to the extent that any such Transfer occurs not less than five (5) Business Days prior to the initial expiration of the Offer (any such Transfer and any other Transfer as Parent may agree pursuant to Section 4.01(d4.1(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and Transfer, (y) the Permitted Transferee transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, Agreement and (az) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary the transferee of such PersonSubject Shares, and (b) simultaneously with respect accepting such charitable contribution, takes all actions necessary to any Stockholder who is a natural Person, (i) an immediate family member tender such Subject Shares into the Offer pursuant to the terms of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersOffer. If any involuntary Transfer of any of such Stockholder’s Subject Shares in the Company shall occur (including, but not limited to, a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with its terms.
(c) Unless and until this Agreement shall have been validly terminated in accordance with Section 5.2, such Stockholder agrees that it shall not become a member of a “group” (as defined under Section 13(d) of the Exchange Act) for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement.
(d) Notwithstanding Section 4.1(b), such Stockholder may make Transfers of such Stockholder’s Subject Shares as Parent may agree in writing in its sole discretion.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from and after the date hereof and until this Agreement is terminated, such Stockholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except as provided hereunder (whichhereunder, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder Shareholder shall not, directly or indirectly, (i) create or permit to exist any EncumbranceEncumbrance (as defined below), other than Permitted EncumbrancesEncumbrances (as defined below), on any of such StockholderShareholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingof, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any or all of such StockholderShareholder’s Equity Interests in the Company, including any Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such Stockholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such StockholderShareholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such StockholderShareholder’s Equity Interests in the Company, including any Subject Shares Shares, into a voting trust or enter into a voting agreement or arrangement with respect to any of such StockholderShareholder’s Equity Interests in the Company, including the Subject SharesShares or (vi) take or permit any other action that would reasonably be expected to in any way restrict, limit or interfere with the performance of Shareholder’s obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of Shareholder herein untrue or incorrect. Any action taken in violation of the immediately preceding foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (initio and Shareholder agrees that any such Transfer prohibited action may and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall should be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iii) any trust or other Person established by, or on behalf of, such Stockholder or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersenjoined. If any involuntary Transfer of any of such Stockholder’s the Subject Shares in the Company shall occur (including, but not limited to, a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement Agreement. Shareholder agrees that Shareholder shall not, and shall cause each of its affiliates not to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Equity Interests in accordance the Company for the purpose of opposing or competing with or taking any actions that would reasonably be interpreted, or would reasonably be expected, to be inconsistent with the transactions contemplated by the Purchase Agreement. Notwithstanding the foregoing, Shareholder may make Transfers of Subject Shares as Purchaser may agree in writing in its termssole discretion. If so requested by Purchaser, Shareholder agrees that the Subject Shares shall bear a legend stating that Subject Shares are subject to this Agreement, provided such legend shall be removed upon the valid termination of this Agreement.
Appears in 1 contract
No Transfer; No Inconsistent Arrangements. (a) Each Stockholder hereby agrees that, from From and after the date hereof and until this Agreement is terminatedterminated in accordance with Section 5.2, subject to Section 4.1(b), such Stockholder Shareholder shall not, directly or indirectly, take any action that would have the effect of preventing, materially delaying or materially impairing such Stockholder from performing any of its obligations under this Agreement or that would, or would reasonably be expected to, have the effect of preventing, materially delaying or materially impairing, the consummation of the Offer, the Merger or the other transactions contemplated by the Business Combination Agreement or the performance by the Company of its obligations under the Business Combination Agreement.
(b) Except except as otherwise expressly provided hereunder (which, for clarity, includes the tendering of such Stockholder’s Subject Shares into the Offer in accordance with the terms of this Agreement and the Business Combination Agreement), from and after the date hereof and until the termination of this Agreement in accordance with its terms, such Stockholder shall not, directly or indirectlyherein, (i) create or permit to exist any EncumbranceLien, other than Permitted EncumbrancesShare Liens, on any or all of such StockholderShareholder’s Subject Shares, (ii) transfer, sell, assign, gift, hedge, distribute, pledge or otherwise dispose of (includingwhether by sale, for the avoidance of doubtliquidation, by depositingdissolution, submitting dividend, distribution or otherwise tendering any such Subject Shares into any tender otherwise) of, or exchange offer other than the Offer and, including, for the avoidance of doubt, any transfer or entry enter into any derivative arrangement with respect to (collectively, “Transfer”), any of such StockholderShareholder’s Subject Shares, or any right or interest therein (or consent to any of the foregoing), (iii) enter into any Contract with respect to any Transfer of such StockholderShareholder’s Subject Shares or any legal or beneficial interest therein, (iv) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any of such StockholderShareholder’s Subject Shares or Shares, (v) deposit or permit the deposit of any of such StockholderShareholder’s Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such StockholderShareholder’s Subject Shares. Any action taken in violation of the immediately preceding sentence shall be null and void ab initio. Notwithstanding the foregoing, any Stockholder may Transfer all or any portion of such Stockholder’s Subject Shares to a Permitted Transferee (as defined below) (any such Transfer and any Transfer as Parent may agree pursuant to Section 4.01(d) below, a “Permitted Transfer”), provided, that a Transfer described in this sentence shall be a Permitted Transfer only if (x) all of the representations and warranties in this Agreement with respect to such Stockholder would be true and correct upon such Transfer and (y) the Permitted Transferee of such Subject Shares, prior to the date of such Transfer, agrees in a signed writing satisfactory to Parent (acting reasonably) to accept such Subject Shares subject to the terms of this Agreement and to be bound by the terms of this Agreement as a “Stockholder” for all purposes of this Agreement. “Permitted Transferee” means, (a) with respect to any Stockholder that is a legal Person, any wholly-owned subsidiary of such Person, and (b) with respect to any Stockholder who is a natural Person, (i) an immediate family member of such Stockholder, (ii) such Stockholder’s estate upon the death of such Stockholder, or (iiivi) take or permit any trust other action that would reasonably be expected to in any way restrict, limit, interfere with or other Person established by, delay the performance of such Shareholder’s obligations hereunder or on behalf of, the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder Shareholder herein untrue or his or her immediate family members for bona fide tax and/or estate planning purposes and controlled and wholly beneficially owned by, or maintained solely for the benefit of, such Stockholder and/or his or her immediate family membersincorrect in any material respect. If any involuntary Transfer of any or all of such StockholderShareholder’s Subject Shares in the Company shall occur (including, but not limited toif applicable, a sale by such StockholderShareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, shall take and hold such Subject Shares Shares, subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement. Such Shareholder agrees that it shall not, and shall cause each of its controlled Affiliates not to, and shall not encourage, direct or instruct each of its non-controlled Affiliates to, become a member of a “group” (as defined under Section 13(d) of the Exchange Act) with respect to any Company securities for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement.
(b) Notwithstanding the foregoing Section 4.1(a), such Shareholder may make Transfers of Shares (x) to any “Permitted Transferee” (as defined below), in which case the Shares shall continue to be bound by this Agreement and provided that any such Permitted Transferee agrees in accordance writing to be bound by the terms and conditions of this Agreement with respect to such Shares that are subject to such Transfer prior to the consummation of any such Transfer, or (y) as Parent may otherwise agree in writing in its termsreasonable discretion. A “Permitted Transferee” means, with respect to any Shareholder, (I) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild, or the spouse of any child, adopted child, grandchild, or adopted grandchild of such Shareholder, (II) any charitable organization described in Section 170(c) of the Code, (III) any trust, the beneficiaries of which include only the Persons named in clause (I) or (II) of this definition, (IV) any Affiliate of such Shareholder, including any investment fund affiliated with or managed by such Shareholder or its fund, managed account or other similar vehicle Affiliates (and any investment vehicles wholly owned by such fund) and (if applicable) any direct or indirect general partner, managing member or similar control Person of any such Person or (V) any corporation, limited liability company, or partnership, the shareholders, members, and general or limited partners of which include only the Persons named in clause (I) or (II) of this definition. For the avoidance of doubt, the fact that any Shares are held in a margin account or pledged pursuant to the terms thereof shall not be deemed a breach or violation of any representation, warranty or covenant contained herein.
Appears in 1 contract
