Voting of Common Stock. The Trustee shall vote (or act by written consent with respect to) the shares of Common Stock held by the Trust in accordance with the provisions of this Section 4.4(a). As soon as practicable following the record date in question, the Company shall deliver to the Trustee a schedule (the "Eligible Participant Schedule") listing (1) all persons other than members of the Board of Directors (collectively, "Eligible Participants") with respect to whom shares of Common Stock are deliverable as of such record date as a result of (x) purchases by such Eligible Participants pursuant to the Company's Employee Stock Ownership Plan or Franchised Dealer Stock Ownership Plan, including any successor or substitute stock purchase plans as may be listed on Exhibit A from time to time (collectively, the "Stock Purchase Plans"), or (y) the exercise of stock options granted to such Eligible Participants pursuant to the Company's Amended and Restated Snap-On Incorporated 1986 Incentive Stock Program, as amended from time to time, including any successor or substitute stock incentive or option plans as may be listed on Exhibit A from time to time (such plans, the "Stock Option Plan") and (2) the number of Directed Shares (as hereinafter defined) with respect to which each Eligible Participant is entitled to direct the voting. Each Eligible Participant listed on such Eligible Participant Schedule shall have the right to direct the vote (or written consent) with respect to that number of shares of Common Stock held by the Trust as of such record date (such number being hereinafter referred to as the "Directed Shares") which is equal to the number of shares then deliverable to such Eligible Participant as a result of purchases by such Eligible Participant under the Stock Purchase Plans or the exercise by such Eligible Participant of stock options granted under the Stock Option Plan and shall also furnish to the Trustee such further information as the Trustee determines is necessary for it to perform its responsibilities under this Section 4.4(a). If an Eligible Participant provides directions to the Trustee with respect to the voting of (or action by written consent with respect to) his or her Directed Shares, the Trustee shall vote (or act by written consent with respect to), or abstain or withhold authority with respect to, as applicable, shares of Common Stock held by the Trust as of such record date which are equal in number to such Directed Shares in accordance with the directions of such Eligible Participant. With respect to (1) shares of Common Stock held by the Trust as of such record date which are equal to the aggregate number of Directed Shares with respect to which the Trustee has not received directions from Eligible Participants and (2) shares of Common Stock held in the Trust as of such record date which are in excess of the aggregate number of Directed Shares (the shares referred to in (1) and (2) being collectively referred to as the "Mirrored Shares"), the number of Mirrored Shares to be voted in a particular manner (or acted upon by written consent) or abstaining or withholding authority, as the case may be, with respect to a particular matter shall equal to product of (x) the total number of Mirrored Shares held by the Trust as of such record date and (y) a fraction the numerator of which is the aggregate number of shares of Common Stock voted in such manner (or acted upon by written consent) or abstaining or withholding authority, as the case may be, with respect to such matter by all stockholders of the Company (other than the Trust) and the denominator of which is the aggregate number of outstanding shares of Common Stock held by all stockholders of the Company (other than the Trust). The Trustee shall devise and implement a procedure to assure confidentiality of any directions given by Eligible Participants in respect of votes. All actions taken by Eligible Participants pursuant to this Section 4.4(a) shall be held confidential by the Trustee and shall not be divulged or released to any person, other than (i) agents of the Trustee who are not affiliated with the Company or its affiliates, (ii) by virtue of the execution by the Trustee of any proxy, consent or letter of transmittal for the shares of Common Stock held in the Trust, (iii) as may be required by court order or (iv) as otherwise necessary for the Trustee to carry out its responsibilities under this Agreement.
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Voting of Common Stock. The Trustee shall vote VHA agrees that from and after the date of the Closing through the fifth anniversary of the Closing (or act by written consent with respect to) the "FIFTH ANNIVERSARY"), and for as long after the Fifth Anniversary as the outstanding shares of Common Stock held (including Restricted Shares and Vested Shares) beneficially owned by the Trust in accordance VHA together with the provisions all "affiliates" (which for purposes of this Agreement (other than Section 4.4(a). As soon as practicable following 4.12) shall have the record date meaning given such term in questionRule 144(a)(1) promulgated under the 1933 Xxx) xx VHA exceeds 35% of the then outstanding Common Stock of Parent (the entire such period, the Company shall deliver "RESTRICTED PERIOD"), to the Trustee a schedule extent that the outstanding shares of Common Stock (including outstanding Shares, Restricted Shares and Vested Shares) beneficially owned by VHA together with all affiliates of VHA exceeds 19.9% of the then outstanding Common Stock of Parent (the shares (including outstanding Shares, Restricted Shares and Vested Shares) in excess of such 19.9% threshold, "Eligible Participant ScheduleEXCESS SHARES"), VHA shall, and shall cause its affiliates to, vote all Excess Shares it holds or is entitled to vote in proportion to the votes cast by all other stockholders of Parent in connection with each matter submitted to Parent's stockholders for approval, except that in the cases of (i) listing a proposed Change of Control, (1ii) all persons other than members the election of VHA's designated nominees to the Board of Directors (collectively, "Eligible Participants") with respect to whom shares of Common Stock are deliverable as of such record date as a result of (x) purchases by such Eligible Participants pursuant to the Company's Employee Stock Ownership Plan or Franchised Dealer Stock Ownership Plan, including any successor or substitute stock purchase plans as may be listed on Exhibit A from time to time (collectively, the "Stock Purchase Plans")Parent, or (yiii) an amendment of the exercise Certificate of stock options granted to Incorporation of Parent that would materially and adversely affect VHA as a Parent stockholder in a manner different from the effect such Eligible Participants pursuant to the Company's Amended and Restated Snap-On Incorporated 1986 Incentive Stock Programamendment would have on other Parent stockholders generally, as amended from time to time, including any successor or substitute stock incentive or option plans as VHA may be listed on Exhibit A from time to time (such plans, the "Stock Option Plan") and (2) the number of Directed Shares (as hereinafter defined) with respect to which each Eligible Participant is entitled to direct the voting. Each Eligible Participant listed on such Eligible Participant Schedule shall have the right to direct the vote (or written consent) with respect to that without restriction a number of shares of Common Stock held by the Trust as of such record date (such number being hereinafter referred to as the "Directed including Shares", Restricted Shares and Vested Shares) which is it beneficially owns equal to the number of shares then deliverable to such Eligible Participant as a result of purchases by such Eligible Participant under the Stock Purchase Plans or the exercise by such Eligible Participant of stock options granted under the Stock Option Plan and shall also furnish to the Trustee such further information as the Trustee determines is necessary for it to perform its responsibilities under this Section 4.4(a). If an Eligible Participant provides directions to the Trustee with respect to the voting of (or action by written consent with respect to) his or her Directed Shares, the Trustee shall vote (or act by written consent with respect to), or abstain or withhold authority with respect to, as applicable, shares of Common Stock held by the Trust as of such record date which are equal in number to such Directed Shares in accordance with the directions of such Eligible Participant. With respect to (1) shares of Common Stock held by the Trust as of such record date which are equal to the aggregate number of Directed Shares with respect to which the Trustee has not received directions from Eligible Participants and (2) shares of Common Stock held in the Trust as of such record date which are in excess of the aggregate number of Directed Shares (the shares referred to in (1) and (2) being collectively referred to as the "Mirrored Shares"), the number of Mirrored Shares to be voted in a particular manner (or acted upon by written consent) or abstaining or withholding authority, as the case may be, with respect to a particular matter shall equal to product of (x) the total number of Mirrored Shares held by the Trust as of such record date and (yA) a fraction fraction, the numerator of which is equal to (w) the aggregate number of shares of Common Stock voted in such manner (or acted upon by written consentincluding Shares, Restricted Shares and Vested Shares) or abstaining or withholding authority, as VHA beneficially owns on the case may be, with respect record date used to determine stockholders eligible to vote on such matter by all stockholders minus (x) the number of the Company (other than the Trust) Restricted Shares that are not Vested Shares on such date, and the denominator of which is (y) the aggregate total number of outstanding shares of Common Stock held outstanding on such date minus (z) the number of Restricted Shares that are not Vested Shares on such date, multiplied by (B) the total number of shares of Common Stock outstanding on such date, and any shares of Common Stock beneficially owned by VHA in excess of such number shall be voted as Excess Shares. On all matters submitted to Parent stockholders of the Company (for approval other than the Trust). The Trustee shall devise and implement a procedure to assure confidentiality of any directions given by Eligible Participants those identified in respect of votes. All actions taken by Eligible Participants pursuant to this Section 4.4(a) shall be held confidential by the Trustee and shall not be divulged or released to any person, other than items (i) agents of the Trustee who are not affiliated with the Company or its affiliates), (ii) by virtue of the execution by the Trustee of any proxy, consent or letter of transmittal for the shares of Common Stock held in the Trust, and (iii) of the preceding sentence, VHA shall, and shall cause its affiliates to, vote all Excess Shares in proportion to the votes cast by all other stockholders of Parent in connection with each matter submitted to Parent stockholders' for approval, including, without limitation, on any matters regarding equity-based or other compensation plans of Parent, the issuance of capital stock of Parent, amendments to the Certificate of Incorporation of Parent other than as set forth in clause (iii) above, elections of directors other than VHA's designated nominees to the Board of Directors, or transactions involving interested or related parties. Notwithstanding any voting restrictions set forth herein, the Board of Directors of Parent may be required by court order or (iv) as otherwise necessary for the Trustee waive any voting restriction set forth herein with respect to carry out its responsibilities under this Agreementany particular matter.
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Samples: Common Stock and Warrant Agreement (Neoforma Com Inc)
Voting of Common Stock. The Trustee shall vote VHA agrees that from and after the date of the Closing through the fifth anniversary of the Closing (or act by written consent with respect to) the "FIFTH ANNIVERSARY"), and for as long after the Fifth Anniversary as the outstanding shares of Common Stock held (including Restricted Shares and Vested Shares) beneficially owned by the Trust in accordance VHA together with the provisions all "affiliates" (which for purposes of this Agreement (other than Section 4.4(a). As soon as practicable following 4.12) shall have the record date meaning given such term in questionRule 144(a)(1) promulgated under the 0000 Xxx) of VHA exceeds 35% of the then outstanding Common Stock of Parent (the entire such period, the Company shall deliver "RESTRICTED PERIOD"), to the Trustee a schedule extent that the outstanding shares of Common Stock (including outstanding Shares, Restricted Shares and Vested Shares) beneficially owned by VHA together with all affiliates of VHA exceeds 19.9% of the then outstanding Common Stock of Parent (the shares (including outstanding Shares, Restricted Shares and Vested Shares) in excess of such 19.9% threshold, "Eligible Participant ScheduleEXCESS Shares"), VHA shall, and shall cause its affiliates to, vote all Excess Shares it holds or is entitled to vote in proportion to the votes cast by all other stockholders of Parent in connection with each matter submitted to Parent's stockholders for approval, except that in the cases of (i) listing a proposed Change of Control, (1ii) all persons other than members the election of VHA's designated nominees to the Board of Directors (collectively, "Eligible Participants") with respect to whom shares of Common Stock are deliverable as of such record date as a result of (x) purchases by such Eligible Participants pursuant to the Company's Employee Stock Ownership Plan or Franchised Dealer Stock Ownership Plan, including any successor or substitute stock purchase plans as may be listed on Exhibit A from time to time (collectively, the "Stock Purchase Plans")Parent, or (yiii) an amendment of the exercise Certificate of stock options granted to Incorporation of Parent that would materially and adversely affect VHA as a Parent stockholder in a manner different from the effect such Eligible Participants pursuant to the Company's Amended and Restated Snap-On Incorporated 1986 Incentive Stock Programamendment would have on other Parent stockholders generally, as amended from time to time, including any successor or substitute stock incentive or option plans as VHA may be listed on Exhibit A from time to time (such plans, the "Stock Option Plan") and (2) the number of Directed Shares (as hereinafter defined) with respect to which each Eligible Participant is entitled to direct the voting. Each Eligible Participant listed on such Eligible Participant Schedule shall have the right to direct the vote (or written consent) with respect to that without restriction a number of shares of Common Stock held by the Trust as of such record date (such number being hereinafter referred to as the "Directed including Shares", Restricted Shares and Vested Shares) which is it beneficially owns equal to the number of shares then deliverable to such Eligible Participant as a result of purchases by such Eligible Participant under the Stock Purchase Plans or the exercise by such Eligible Participant of stock options granted under the Stock Option Plan and shall also furnish to the Trustee such further information as the Trustee determines is necessary for it to perform its responsibilities under this Section 4.4(a). If an Eligible Participant provides directions to the Trustee with respect to the voting of (or action by written consent with respect to) his or her Directed Shares, the Trustee shall vote (or act by written consent with respect to), or abstain or withhold authority with respect to, as applicable, shares of Common Stock held by the Trust as of such record date which are equal in number to such Directed Shares in accordance with the directions of such Eligible Participant. With respect to (1) shares of Common Stock held by the Trust as of such record date which are equal to the aggregate number of Directed Shares with respect to which the Trustee has not received directions from Eligible Participants and (2) shares of Common Stock held in the Trust as of such record date which are in excess of the aggregate number of Directed Shares (the shares referred to in (1) and (2) being collectively referred to as the "Mirrored Shares"), the number of Mirrored Shares to be voted in a particular manner (or acted upon by written consent) or abstaining or withholding authority, as the case may be, with respect to a particular matter shall equal to product of (x) the total number of Mirrored Shares held by the Trust as of such record date and (yA) a fraction fraction, the numerator of which is equal to (w) the aggregate number of shares of Common Stock voted in such manner (or acted upon by written consentincluding Shares, Restricted Shares and Vested Shares) or abstaining or withholding authority, as VHA beneficially owns on the case may be, with respect record date used to determine stockholders eligible to vote on such matter by all stockholders minus (x) the number of the Company (other than the Trust) Restricted Shares that are not Vested Shares on such date, and the denominator of which is (y) the aggregate total number of outstanding shares of Common Stock held outstanding on such date minus (z) the number of Restricted Shares that are not Vested Shares on such date, multiplied by (B) the total number of shares of Common Stock outstanding on such date, and any shares of Common Stock beneficially owned by VHA in excess of such number shall be voted as Excess Shares. On all matters submitted to Parent stockholders of the Company (for approval other than the Trust). The Trustee shall devise and implement a procedure to assure confidentiality of any directions given by Eligible Participants those identified in respect of votes. All actions taken by Eligible Participants pursuant to this Section 4.4(a) shall be held confidential by the Trustee and shall not be divulged or released to any person, other than items (i) agents of the Trustee who are not affiliated with the Company or its affiliates), (ii) by virtue of the execution by the Trustee of any proxy, consent or letter of transmittal for the shares of Common Stock held in the Trust, and (iii) of the preceding sentence, VHA shall, and shall cause its affiliates to, vote all Excess Shares in proportion to the votes cast by all other stockholders of Parent in connection with each matter submitted to Parent stockholders' for approval, including, without limitation, on any matters regarding equity-based or other compensation plans of Parent, the issuance of capital stock of Parent, amendments to the Certificate of Incorporation of Parent other than as set forth in clause (iii) above, elections of directors other than VHA's designated nominees to the Board of Directors, or transactions involving interested or related parties. Notwithstanding any voting restrictions set forth herein, the Board of Directors of Parent may be required by court order or (iv) as otherwise necessary for the Trustee waive any voting restriction set forth herein with respect to carry out its responsibilities under any particular matter. For purposes of this Agreement, "CHANGE OF CONTROL" means the consummation of any transaction or series of related transactions, including an acquisition of Parent by another entity and any reorganization, merger, consolidation or share exchange, that results in the beneficial owners of Parent's capital stock immediately prior to the transaction or transactions holding less than 50% of the voting power of Parent immediately after the transaction or transactions, or a transaction or series of related transactions which result in the sale, exchange, transfer, acquisition or disposition of more than 50% of the assets of Parent.
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Voting of Common Stock. The Trustee shall vote (or act by written consent with respect to) the shares of Common Stock held by the Trust in accordance with the provisions of this Section 4.4(a). As soon as practicable following the record date in question, the Company shall deliver to the Trustee a schedule (the "Eligible Participant Schedule") listing (1) all persons other than members of the Board of Directors (collectively, "Eligible Participants") with respect to whom shares of Common Stock are deliverable as of such record date as a result of (x) purchases by such Eligible Participants pursuant to the Company's Employee Stock Ownership Plan or Franchised Dealer Stock Ownership Plan, including any successor or substitute stock purchase plans as may be listed on Exhibit A from time to time (collectively, the "Stock Purchase Plans"), or (y) the exercise of stock options granted to such Eligible Participants pursuant to the Company's Amended and Restated Snap-On on Incorporated 1986 Incentive Stock Program, as amended from time to time, including any successor or substitute stock incentive or option plans as may be listed on Exhibit A from time to time (such plans, the "Stock Option Plan") and (2) the number of Directed Shares (as hereinafter defined) with respect to which each Eligible Participant is entitled to direct the voting. Each Eligible Participant listed on such Eligible Participant Schedule shall have the right to direct the vote (or written consent) with respect to that number of shares of Common Stock held by the Trust as of such record date (such number being hereinafter referred to as the "Directed Shares") which is equal to the number of shares then deliverable to such Eligible Participant as a result of purchases by such Eligible Participant under the Stock Purchase Plans or the exercise by such Eligible Participant of stock options granted under the Stock Option Plan and shall also furnish to the Trustee such further information as the Trustee determines is necessary for it to perform its responsibilities under this Section 4.4(a). If an Eligible Participant provides directions to the Trustee with respect to the voting of (or action by written consent with respect to) his or her Directed Shares, the Trustee shall vote (or act by written consent with respect to), or abstain or withhold authority with respect to, as applicable, shares of Common Stock held by the Trust as of such record date which are equal in number to such Directed Shares in accordance with the directions of such Eligible Participant. With respect to (1) shares of Common Stock held by the Trust as of such record date which are equal to the aggregate number of Directed Shares with respect to which the Trustee has not received directions from Eligible Participants and (2) shares of Common Stock held in the Trust as of such record date which are in excess of the aggregate number of Directed Shares (the shares referred to in (1) and (2) being collectively referred to as the "Mirrored Shares"), the number of Mirrored Shares to be voted in a particular manner (or acted upon by written consent) or abstaining or withholding authority, as the case may be, with respect to a particular matter shall equal to product of (x) the total number of Mirrored Shares held by the Trust as of such record date and (y) a fraction the numerator of which is the aggregate number of shares of Common Stock voted in such manner (or acted upon by written consent) or abstaining or withholding authority, as the case may be, with respect to such matter by all stockholders of the Company (other than the Trust) and the denominator of which is the aggregate number of outstanding shares of Common Stock held by all stockholders of the Company (other than the Trust). The Trustee shall devise and implement a procedure to assure confidentiality of any directions given by Eligible Participants in respect of votes. All actions taken by Eligible Participants pursuant to this Section 4.4(a) shall be held confidential by the Trustee and shall not be divulged or released to any person, other than (i) agents of the Trustee who are not affiliated with the Company or its affiliates, (ii) by virtue of the execution by the Trustee of any proxy, consent or letter of transmittal for the shares of Common Stock held in the Trust, (iii) as may be required by court order or (iv) as otherwise necessary for the Trustee to carry out its responsibilities under this Agreement."
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Voting of Common Stock. The Trustee shall vote (or act by written consent with respect to) the shares of Common Stock held by the Trust in accordance with the provisions of this Section 4.4(a). As soon as practicable following the record date in question, the Company shall deliver to the Trustee a schedule (the "Eligible Participant Schedule") listing Eligible Participants (1as hereinafter defined) all persons other than members of the Board of Directors (collectively, "Eligible Participants") with respect to whom shares of Common Stock are deliverable as of such record date as a result of (x) purchases by such Eligible Participants pursuant to the Company's Employee Stock Ownership Plan or Franchised Dealer Stock Ownership Plan, including any successor or substitute stock purchase plans as may be listed on Exhibit A from time to time (collectively, the "Stock Purchase Plans"), or (y) the exercise of stock options granted to such Eligible Participants pursuant to the Company's Amended and Restated Snap-On Incorporated 1986 Incentive Stock Program, as amended from time to time, including any successor or substitute stock incentive or option plans as may be listed on Exhibit A from time to time (such plans, the "Stock Option Plan") and (2) the number of Directed Shares (as hereinafter defined) with respect to which each Eligible Participant is entitled to direct the voting. Each Eligible Participant listed on such Eligible Participant Schedule shall have the right to direct the vote (or written consent) with respect to that number of shares of Common Stock held by the Trust as of such record date which is equal to the product (such number product being hereinafter referred to as the "Directed Shares") which is equal to of (1) the sum of (a) the number of shares then deliverable of Common Stock purchased pursuant to such the Company's Employee Stock Ownership Plan or Franchised Dealer Stock Ownership Plan, including any successor or substitute stock purchase plans as may be listed on Exhibit A from time to time (collectively, the "Stock Purchase Plans"), by the Eligible Participant during the immediately preceding 12 months and (b) the total number of shares of Common Stock subject to stock options granted pursuant to the Company's Amended and Restated Snap-On Incorporated 1986 Incentive Stock Program, as a result of purchases amended from time to time, including any successor or substitute stock incentive or option plans as may be listed on Exhibit A from time to time (such plans, the "Stock Option Plan") held by such the Eligible Participant under which are then exercisable, multiplied by (2) a fraction (not to exceed one) the numerator of which is the number of shares of Common Stock held by the Trust as of such record date and the denominator of which is the sum of (c) the number of shares of Common stock purchased pursuant to the Stock Purchase Plans or by all Eligible Participants during the exercise by such Eligible Participant immediately preceding 12 months and (d) the total number of shares of Common Stock subject to stock options granted under pursuant to the Stock Option Plan and shall also furnish to the Trustee such further information as the Trustee determines is necessary for it to perform its responsibilities under this Section 4.4(a)held by all Eligible Participants which are then exercisable. If an Eligible Participant provides directions to the Trustee with respect to the voting of (or action by written consent with respect to) his or her Directed Shares, the Trustee shall vote (or act by written consent with respect to), or abstain or withhold authority with respect to, as applicable, shares of Common Stock held by the Trust as of such record date which are equal in number to such Directed Shares in accordance with the directions of such Eligible Participant. With respect to (1) shares of Common Stock held by the Trust as of such record date which are equal to the aggregate number of Directed Shares with respect to which the Trustee has not received directions from Eligible Participants and (2) shares of Common Stock held in the Trust as of such record date which are in excess of the aggregate number of Directed Shares (the shares referred to in (1) and (2) being collectively referred to as the "Mirrored Shares"), the number of Trustee shall vote (or act by written consent with respect to), or abstain or withhold authority with respect to, as applicable, the Mirrored Shares in the same proportion as the Directed Shares with respect to be voted in a particular manner which the Trustee has received voting (or acted upon by written consent) or abstaining or withholding authority, as the case may be, with respect to a particular matter shall equal to product of (x) the total number of Mirrored Shares held by the Trust as of such record date and (y) a fraction the numerator of which is the aggregate number of shares of Common Stock voted in such manner (or acted upon by written consent) or abstaining or withholding authority, as the case may be, with respect to such matter by all stockholders of the Company (other than the Trust) and the denominator of which is the aggregate number of outstanding shares of Common Stock held by all stockholders of the Company (other than the Trust)directions from Eligible Participants. The Trustee shall devise and implement a procedure to assure confidentiality of any directions given by Eligible Participants in respect of votes. All actions taken by Eligible Participants pursuant to this Section 4.4(a) shall be held confidential by the Trustee and shall not be divulged or released to any person, other than (i) agents of the Trustee who are not affiliated with the Company or its affiliates, (ii) by virtue of the execution by the Trustee of any proxy, consent or letter of transmittal for the shares of Common Stock held in the Trust, (iii) as may be required by court order or (iv) as otherwise necessary for the Trustee to carry out its responsibilities under this Agreement. For purposes of this Agreement, "Eligible Participant" shall mean a Participant who, as of the date of determination, (a) is actively employed by (or is a franchise dealer with respect to) the Company, (b) is not a member of the Board of Directors of the Company, and (c) either (1) holds an exercisable option with respect to Common Stock granted to him or her pursuant to the Stock Option Plan or (2) on whose behalf Common Stock was purchased pursuant to either of the Stock Purchase Plans within the 12-month period immediately preceding such date.
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