EXHIBIT B
AMENDED AND RESTATED VOTING AGREEMENT
Amended and Restated Voting Agreement (this "Agreement"), dated as of
October 13, 2004, by and among CARSO HOLDINGS CORPORATION, a Delaware
corporation ("Parent"), and the Shareholder listed on the signature page hereto
("Shareholder").
WHEREAS the parties hereto had previously entered into a Voting Agreement,
dated as of March 28, 2004 (the "Original Voting Agreement"), in connection with
that certain Agreement and Plan of Merger, dated as of March 28, 2004, by and
among Hollywood Entertainment Corporation, an Oregon corporation (the
"Company"), Parent and Hollywood Merger Corporation (formerly named Cosar
Corporation), an Oregon corporation ("Acquiror"), as amended by the First
Amendment to the Agreement and Plan of Merger dated as of June 4, 2004
(collectively, the "Original Merger Agreement");
WHEREAS, simultaneously with the execution and delivery of this Agreement,
the Company, Parent and Acquiror, are entering into an Amended and Restated
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), to amend certain terms and provisions of the Original Merger
Agreement and providing, among other things, for the merger of Acquiror with and
into the Company, with the Company continuing as the surviving corporation and
wholly owned subsidiary of Parent (the "Merger");
WHEREAS, as of the date hereof, Shareholder is the Beneficial Owner (as
defined below) of, and has the sole right to vote, that number of shares of
common stock (the "Company Shares") of the Company set forth beside
Shareholder's name on Schedule A hereto;
WHEREAS, concurrently with the execution of the Merger Agreement, and as a
condition to the willingness of Parent and Acquiror to enter into the Merger
Agreement and incur the obligations set forth therein, Parent has required that
Shareholder enter into this Agreement; and
WHEREAS, the parties have agreed to amend and restate in its entirety the
Original Voting Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not defined in this Agreement are used in this
Agreement with the meanings given to such terms in the Merger Agreement. In
addition, for purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified. For
purposes of this Agreement, with respect to Shareholder, "Affiliate" shall not
include the Company and the Persons that directly, or indirectly through one or
more intermediaries, are controlled by the Company. For the avoidance of doubt,
no officer or director of the Company shall be deemed an Affiliate of another
officer or director of the Company by virtue of his or her status as an officer
or director of the Company.
"Alternative Transaction" means (i) any transaction of the type described
in clauses (a) through (d) of the definition of Acquisition Proposal contained
in the Merger Agreement other than the transactions contemplated by the Merger
Agreement and (ii) any other action, agreement or transaction that would
reasonably be expected to hinder, delay, impede or frustrate the consummation of
the transactions contemplated by the Merger Agreement.
"Beneficially Owned" or "Beneficial Ownership" with respect to any
securities means having beneficial ownership of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act, disregarding the phrase "within
60 days" in paragraph (d)(1)(i) thereof), including pursuant to any agreement,
arrangement or understanding, whether or not in writing. Without duplicative
counting of the same securities, securities Beneficially Owned by a Person shall
include securities Beneficially Owned by (i) all Affiliates of such Person, and
(ii) all other Persons with whom such Person would constitute a "Group" within
the meaning of Section 13(d) of the Exchange Act and the rules promulgated
thereunder.
"Beneficial Owner" with respect to any securities means a Person that has
Beneficial Ownership of such securities.
"Option Agreement" means the Non-Qualified Stock Option Agreement, to be
entered into in connection with the consummation of the Merger, between Parent
and Xxxx X. Xxxxxxx.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust or any other entity or organization, including
any Governmental Entity (as defined in the Merger Agreement).
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"Stockholders Agreement" means the Stockholders Agreement, to be entered
into in connection with the consummation of the Merger, among the stockholders
of Carso Holdings Corporation.
"Subject Shares" means, with respect to Shareholder, without duplication,
(i) Company Shares owned by Shareholder on the date hereof as described on
Schedule A hereto, (ii) any additional Company Shares acquired by Shareholder or
over which he acquires Beneficial Ownership, whether pursuant to existing stock
option agreements or otherwise, (iii) any Equity Interests of any Person that
Shareholder is or becomes entitled to receive by reason of being a holder of any
of the Subject Shares, and (iv) any Equity Interests or other property into
which any of such Subject Shares shall have been or shall be converted or
changed, whether by amendment to the certificate of incorporation of the
Company, merger, consolidation, reorganization, reclassification, capital change
or otherwise.
"Transfer" means, with respect to a security, the sale, transfer, pledge,
hypothecation, encumbrance, assignment or disposition of such security or the
Beneficial Ownership thereof, the offer to make such a sale, transfer or other
disposition, and each option, agreement, arrangement or understanding, whether
or not in writing, to effect any of the foregoing. As a verb, "Transfer" shall
have a correlative meaning.
ARTICLE II
COVENANTS OF SHAREHOLDER
Section 2.1 AGREEMENT TO VOTE.
(a) At any meeting of the shareholders of the Company held prior to
the Expiration Date (as defined in Section 5.13), however called,
and at every adjournment or postponement thereof prior to the
Expiration Date, or in connection with any written consent of, or
any other action by, the shareholders of the Company given or
solicited prior to the Expiration Date, Shareholder shall vote,
or provide a consent with respect to, all of the Subject Shares
entitled to vote or to consent thereon (a) in favor of adoption
and approval of the Merger Agreement and the transactions
contemplated thereby, and any actions required in furtherance
thereof and (b) against any Alternative Transaction.
(b) Shareholder shall not enter into any agreement with any Person prior
to the Expiration Date directly or indirectly to vote, grant any
proxy or give instructions with respect to the voting of, the
Subject Shares.
Section 2.2 REVOCATION OF PROXIES; COOPERATION. Shareholder agrees as
follows:
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(a) Shareholder hereby represents and warrants that any proxies
heretofore given in respect of the Subject Shares are not
irrevocable, and Shareholder hereby revokes any and all prior
proxies with respect to such Subject Shares. Prior to the
Expiration Date, Shareholder shall not directly or indirectly
grant any proxies or powers of attorney with respect to the
matters set forth in Section 2.1, deposit any of the Subject
Shares or enter into a voting agreement (other than this
Agreement) with respect to any of the Subject Shares.
(b) Shareholder will (a) use all reasonable efforts to cooperate with
the Company and Acquiror in connection with the transactions
contemplated by the Merger Agreement, (b) promptly take such
actions as are necessary or appropriate to consummate such
transactions, and (c) provide any information reasonably
requested by the Company and Acquiror for any regulatory
application or filing made or approval sought for such
transactions.
(c) Except as otherwise contemplated by the Amended and Restated Option
Exchange, Contribution and Subscription Agreement, dated as of the
date hereof, by and among Shareholder, Green Equity Investors IV,
L.P. and Parent (the "Contribution Agreement"), Shareholder will
take all action necessary to permit the Subject Shares to be
acquired in the Merger.
Section 2.3 NO SOLICITATION. Shareholder agrees that:
(a) Shareholder shall not, and shall cause its Affiliates and its and
their Representatives (as defined in the Merger Agreement) not
to, directly or indirectly, (i) solicit, initiate or knowingly
encourage any proposal that constitutes, or could reasonably be
expected to lead to, an Acquisition Proposal, (ii) participate or
engage in discussions or negotiations with, or disclose or
provide any non-public information relating to Shareholder, the
Company or its Subsidiaries to, or afford access to any of the
properties, books or records of Shareholder, the Company or its
Subsidiaries to, any Person with respect to any Acquisition
Proposal, (iii) approve, endorse, recommend or vote for (or
consent to) any Acquisition Proposal or (iv) enter into any
agreement or agreement in principle with any Person with respect
to an Acquisition Proposal; PROVIDED, HOWEVER, that the parties
hereby expressly acknowledge and agree that, prior to obtaining
the Company Shareholder Approval, Shareholder, its Affiliates and
its and their Representatives may (without any or all such
actions being deemed, individually or in the aggregate, a breach
of this Agreement) take any of actions described in clauses (i)
and (ii) of this subsection (a); PROVIDED, FURTHER, that (and
without limiting the scope of previous proviso above) prior to
obtaining the Company Shareholder Approval, if (A) the Company is
in compliance in all material respects with the Merger Agreement,
including without limitation, Section 6.2 of the Merger
Agreement, and (B) the Company and/or its Representatives are
engaged in any of the actions described in clause (ii) of
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Section 6.2(a) of the Merger Agreement (the "Permitted Company
Actions"), Shareholder may participate in, cooperate with, and
provide advice and assistance to, the Company and its advisors in
connection with such actions, and Shareholder may participate or
engage in discussions or negotiations (collectively, "Permitted
Shareholder Negotiations") with, or disclose or provide any
information relating to the Company, its Subsidiaries and/or
Shareholder to, or afford access to any of the properties, books
or records of the Company, its Subsidiaries and/or Shareholder
to, the Person with which the Company is engaged in such
Permitted Company Actions. Shareholder shall promptly advise
Parent and Acquiror, telephonically and in writing, of
Shareholder's receipt of any Acquisition Proposal, and the terms
of any Permitted Shareholder Negotiations. Shareholder shall
promptly provide Parent and Acquiror, in writing, with the terms
and conditions of any such Acquisition Proposal, and the identity
of the Person making the same.
(b) Notwithstanding anything to the contrary contained in this
Agreement, (i) the provisions of this Agreement apply solely to
Shareholder when acting in his capacity as a shareholder of the
Company and not when acting or purporting to act as a
representative or an officer or director of the Company (it being
understood that the Company has separate and independent
obligations to Parent and Acquiror under Section 6.2 of the
Merger Agreement); (ii) none of the provisions of this Agreement
shall be construed to prohibit, limit or restrict Shareholder
from exercising his fiduciary duties to the Company by voting or
taking any other action whatsoever in his capacity as a director
or officer of the Company; and (iii) no action taken by the
Company in compliance with the terms of the Merger Agreement in
respect of any Acquisition Proposal shall serve as the basis of a
claim that Shareholder is in breach of his obligations hereunder
notwithstanding the fact that Shareholder provided advice or
assistance to the Company in connection therewith.
Section 2.4 NO TRANSFER OF SUBJECT SHARES; PUBLICITY. Shareholder agrees
that:
(a) During the term of this Agreement, Shareholder (i) shall not,
other than pursuant to the Contribution Agreement and the
Security Agreement, dated as of July 15, 2003 (the "Security
Agreement") by and between Shareholder and Zions First National
Bank ("Lender") relating to a loan by Lender to Boards Video
Company, LLC, subject any of the Subject Shares to, or suffer to
exist on any of the Subject Shares, any Lien (as defined in the
Merger Agreement), (ii) shall not Transfer or agree to Transfer
any of the Subject Shares (other than pursuant to the
Contribution Agreement or by operation of the Merger) or grant
any proxy or power-of-attorney with respect to any of the Subject
Shares and (iii) shall take all action necessary to prevent
creditors, including Lender, in respect of any pledge of the
Subject Shares from exercising their rights under such pledge.
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(b) Unless required by applicable law, neither Shareholder nor any of
its Affiliates or Representatives shall make any press release or
public announcement with respect to the business or affairs of the
Company, Parent or Acquiror, including this Agreement, the
Contribution Agreement and the Merger Agreement and the transactions
contemplated hereby and thereby, without the prior written consent
of Parent.
2.5 NO APPRAISAL. Shareholder agrees not to make a written demand
for appraisal in respect of the Subject Shares.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF SHAREHOLDER
Shareholder represents, warrants and covenants to Acquiror that:
Section 3.1 OWNERSHIP. Shareholder is the sole Beneficial Owner and
legal owner of the Subject Shares or the options to acquire Subject Shares, as
applicable, identified on SCHEDULE A hereto, and such shares constitute all of
the capital stock of the Company Beneficially Owned by Shareholder. Other than
as provided in the Contribution Agreement, this Agreement and the Security
Agreement, Shareholder has good and marketable title to all of such shares, free
and clear of all Liens, claims, options, proxies, voting agreements and security
interests and has the sole right to such Subject Shares and there are no
restrictions on rights of disposition or other Liens pertaining to such Subject
Shares. None of the Subject Shares is subject to any voting trust or other
contract with respect to the voting thereof, and no proxy, power of attorney or
other authorization has been granted with respect to any of such Subject Shares.
Section 3.2 AUTHORITY AND NON-CONTRAVENTION.
(a) If Shareholder is a corporation, Shareholder is a corporation duly
organized, validly existing and in good standing under the Laws of
its jurisdiction of organization.
(b) Assuming due authorization, execution and delivery of this Agreement
by Parent, this Agreement has been duly and validly executed and
delivered by Shareholder and constitutes the legal, valid and
binding obligation of Shareholder, enforceable against Shareholder
in accordance with its terms except (i) to the extent limited by
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought. Shareholder has all
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necessary power, authority and legal capacity to execute and deliver
this Agreement and to perform its obligations under this Agreement
and no other proceedings or actions on the part of Shareholder are
necessary to authorize the execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated
hereby. If Shareholder is a corporation, such actions have been duly
authorized and approved by all necessary corporate action of
Shareholder.
(c) Shareholder is not, nor will it be, required to make any filing with
or give any notice to, or to obtain any consent from, any Person in
connection with the execution, delivery or performance of this
Agreement or obtain any Permit from any Governmental Entity for any
of the transactions contemplated hereby, except as may be required
by (i) Section 13 or Section 16 of the Securities Exchange Act of
1934, as amended, and the rules promulgated thereunder and (ii) the
HSR Act.
(d) Neither the execution and delivery of this Agreement by Shareholder
nor the consummation of the transactions contemplated hereby will,
directly or indirectly, (whether with notice or lapse of time or
both) (i) in the event Shareholder is a corporation, conflict with,
result in any violation of or require any consent under any
provision of the governing documents of Shareholder, (ii) conflict
with, result in any violation of, require any consent under or
constitute a default by Shareholder under any mortgage, bond,
indenture, agreement, instrument or obligation to which Shareholder
is a party or by which it or any of Shareholder's assets (including
the Subject Shares) are bound, or violate any Permit of any
Governmental Entity, or any Law or order to which such Shareholder,
or any of its assets (including the Subject Shares), may be subject;
PROVIDED, HOWEVER, that the consent of the Lender will be required
under the Security Agreement, or (iii) result in the imposition or
creation of any Lien upon or with respect to any of the assets owned
or used by Shareholder (including the Subject Shares).
Section 3.3 TOTAL SHARES. Except as set forth on SCHEDULE A hereto,
Shareholder, except with respect to stock options disclosed pursuant to the
Merger Agreement, is not the Beneficial Owner of, and does not have (whether
currently, upon lapse of time, following the satisfaction of any conditions,
upon the occurrence of any event or any combination of the foregoing) any right
to acquire, and has no other interest in or voting rights with respect to, any
Company Shares or any securities convertible into or exchangeable or exercisable
for Company Shares.
Section 3.4 RELIANCE. Shareholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Shareholder's
execution, delivery and performance of this Agreement.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARENT
Parent represents, warrants and covenants to Shareholder that, assuming
due authorization, execution and delivery of this Agreement by Shareholder, this
Agreement constitutes the legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms except (i) to the extent
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
Parent has the corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution and delivery
by Parent of this Agreement and the consummation by Parent of the transactions
contemplated hereby have been duly and validly authorized by the Board of
Directors of Parent and no other corporate proceedings on the part of Parent are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Parent.
ARTICLE V
GENERAL PROVISIONS
Section 5.1 NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be deemed to vest in Parent any direct or indirect ownership or incidents
of ownership of or with respect to the Subject Shares. All rights, ownership and
economic benefits of and relating to the Subject Shares shall remain and belong
to Shareholder, and Parent shall have no authority to manage, direct,
superintend, restrict, regulate, govern or administer any of the policies or
operations of the Company or exercise any power or authority to direct
Shareholder in the voting of any of the Subject Shares, except as otherwise
expressly provided herein or in the Merger Agreement.
Section 5.2 NOTICES. All notices, consents, waivers and other
communications under this Agreement shall be in writing (including facsimile or
similar writing) and shall be given:
(a) If to Parent, to:
Xxxxxxx Xxxxx & Partners, L.P.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: 310-954-0404
With a copy (which will not constitute notice) to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: 000-000-0000
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(b) If to a Shareholder, to Shareholder's address set forth on
SCHEDULE A hereto.
With a copy (which will not constitute notice) to:
O'Melveny & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: 000-000-0000
or such other address or facsimile number as a party may hereafter specify for
the purpose by notice to the other parties hereto. Each notice, consent, waiver
or other communication under this Agreement shall be effective only (a) if given
by facsimile, when the facsimile is transmitted to the facsimile number
specified in this Section and the appropriate facsimile confirmation is received
or (b) if given by overnight courier or personal delivery when delivered at the
address specified in this Section.
Section 5.3 FURTHER ACTIONS. Upon the request of any party to this
Agreement, the other party will (a) furnish to the requesting party any
additional information, (b) execute and deliver, at their own expense, any other
documents and (c) take any other actions as the requesting party may reasonably
require to more effectively carry out the intent of this Agreement.
Section 5.4 ENTIRE AGREEMENT AND MODIFICATION. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, between the parties with respect to its subject matter and constitutes
(along with the documents delivered pursuant to this Agreement) a complete and
exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement shall not be amended, supplemented
or otherwise modified except (i) with the consent of the Special Committee, and
(ii) in a written document executed by the party against whose interest the
modification will operate. The parties shall not enter into any other agreement
inconsistent with the terms and conditions of this Agreement, or which addresses
any of the subject matters addressed in this Agreement, or which prevents the
Company from taking any of the actions permitted by Section 6.2(a) of the Merger
Agreement. For the avoidance of doubt, the previous sentence shall not prohibit
the parties from entering into the Ancillary Agreements, the Stockholders
Agreement, the Option Agreement, and the Financing Letters.
Section 5.5 DRAFTING AND REPRESENTATION. The parties agree that the terms
and language of this Agreement were the result of negotiations between the
parties and, as a result, there shall be no presumption that any ambiguities in
this Agreement shall be resolved against any party. Any controversy over
construction of this Agreement shall be decided without regard to events of
authorship or negotiation.
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Section 5.6 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
affecting the validity or enforceability of the remaining provisions hereof. Any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. If any provision
of this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
Section 5.7 NO THIRD-PARTY RIGHTS. Shareholder may not assign any of its
rights or delegate any of its obligations under this Agreement without the prior
written consent of Parent. Parent may not assign any of its rights or delegate
any of its obligations under this Agreement with respect to Shareholder without
the prior written consent of Shareholder; PROVIDED, that Parent may assign its
rights and delegate its obligations hereunder to any Person wholly-owned,
directly or indirectly, by an affiliate of Xxxxxxx Xxxxx & Partners, L.P. This
Agreement will apply to, be binding in all respects upon, and inure to the
benefit of each of the respective successors, personal or legal representatives,
heirs, distributes, devisees, legatees, executors, administrators and permitted
assigns of Shareholder and the successors and permitted assigns of Parent.
Nothing expressed or referred to in this Agreement will be construed to give any
Person, other than the parties to this Agreement, any legal or equitable right,
remedy or claim under or with respect to this Agreement or any provision of this
Agreement except such rights as may inure to a successor or permitted assignee
under this Section; PROVIDED, HOWEVER, that the Company shall have third-party
beneficiary rights with respect to the penultimate sentence of Section 5.4 of
this Agreement.
Section 5.8 ENFORCEMENT OF AGREEMENT. Shareholder acknowledges and agrees
that Parent could be damaged irreparably if any of the provisions of this
Agreement are not performed in accordance with their specific terms and that any
breach of this Agreement by Shareholder could not be adequately compensated by
monetary damages. Accordingly, Shareholder agrees that, (a) it will waive, in
any action for specific performance, the defense of adequacy of a remedy at Law,
and (b) in addition to any other right or remedy to which Parent may be
entitled, at Law or in equity, Parent will be entitled to enforce any provision
of this Agreement by a decree of specific performance and to temporary,
preliminary and permanent injunctive relief to prevent breaches or threatened
breaches of any of the provisions of this Agreement, without posting any bond or
other undertaking.
Section 5.9 WAIVER. The rights and remedies of the parties to this
agreement are cumulative and not alternative. Neither any failure nor any delay
by a party in exercising any right, power or privilege under this Agreement or
any of the documents referred to in this Agreement will operate as a waiver of
such right, power or privilege, and no single or partial exercise of any such
right, power or privilege will preclude any other or further exercise of such
right, power or privilege or the exercise of any other right, power or
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privilege. To the maximum extent permitted by applicable Law, (a) no claim or
right arising out of this Agreement or any of the documents referred to in this
Agreement can be discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in a written document signed by the
other party, (b) no waiver that may be given by a party will be applicable
except in the specific instance for which it is given, and (c) no notice to or
demand on one party will be deemed to be a waiver of any obligation of that
party or of the right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement or the documents
referred to in this Agreement.
Section 5.10 GOVERNING LAW. This Agreement will be governed by and
construed under the Laws of the State of Delaware applicable to contracts
executed and fully performed within the State of Delaware, except to the extent
that that voting of the Subject Shares is mandatorily governed by the laws of
the State of Oregon.
Section 5.11 CONSENT TO JURISDICTION. Except as otherwise expressly
provided in this Agreement, the parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought exclusively in the Court of Chancery of the State of
Delaware, County of New Castle or, if such court does not have jurisdiction over
the subject matter of such proceeding or if such jurisdiction is not available,
in the United States District Court for the District of Delaware, and each of
the parties hereby consents to the exclusive jurisdiction of those courts (and
of the appropriate appellate courts therefrom) in any suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by Law, any objection
which it may now or hereafter have to the laying of the venue of any suit,
action or proceeding in any of those courts or that any suit, action or
proceeding which is brought in any of those courts has been brought in an
inconvenient forum. Process in any suit, action or proceeding may be served on
any party anywhere in the world, whether within or without the jurisdiction of
any of the named courts. Without limiting the foregoing, each party agrees that
service of process on it by notice as provided in Section 5.2 shall be deemed
effective service of process. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, all rights to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or any of the
transactions contemplated hereby.
Section 5.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same instrument.
Section 5.13 TERMINATION. This Agreement shall terminate upon the earliest
of (a) the Effective Time (as defined in the Merger Agreement), (b) the
termination of the Merger Agreement in accordance with Section 10.1 thereof, or
(c) written notice by Parent to Shareholder of the termination of this Agreement
(the earliest of the events described in clauses (a), (b) and (c), the
"Expiration Date").
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Section 5.14 EXPENSES. Except as otherwise provided in this Agreement, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses. Nothing in this Agreement shall be deemed to limit the obligations of
the Company pursuant to Section 10.2 of the Merger Agreement.
Section 5.15 HEADINGS; CONSTRUCTION. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. In this Agreement (a) words
denoting the singular include the plural and vice versa, (b) "it" or "its" or
words denoting any gender include all genders, (c) the word "including" shall
mean "including without limitation," whether or not expressed, (d) any reference
herein to a Section, Article, Paragraph, Clause or Schedule refers to a Section,
Article, Paragraph or Clause of or a Schedule to this Agreement, unless
otherwise stated, and (e) when calculating the period of time within or
following which any act is to be done or steps taken, the date which is the
reference day in calculating such period shall be excluded and if the last day
of such period is not a Business Day (as defined in the Merger Agreement), then
the period shall end on the next day which is a Business Day.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
CARSO HOLDINGS CORPORATION,
a Delaware corporation
By: /s/ XXXX X. XXXXXX
----------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Xxxx X. Xxxxxxx, an Individual
/s/ XXXX X. XXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxx
S-1
SCHEDULE A
Name and Other Company
Address of Shareholders Company Shares Securities
------------------------ -------------- -------------
MW Options to purchase
0000 XxxXxxxxx Xxxxx Xx. 3,137,600 shares of 3,500,000 shares of
Xxx Xxxxx, Xxxxxx 00000 common stock common stock
SCHEDULE A
