This agreement is made on [AGREEMENT DATE][ (the "Effective Date")] between [COMPANY NAME], a [CORPORATE JURISDICTION] corporation with its principal place of business at [COMPANY ADDRESS] (the "Company"), [MERGER PARTNER NAME], a [CORPORATE JURISDICTION] corporation with its principal place of business at [COMPANY ADDRESS] (the "[PARTY A]"), and [SHAREHOLDER NAME], [whose principal place of residence is at/a [CORPORATE JURISDICTION] corporation with its principal place of business at] [SHAREHOLDER ADDRESS] (the "Shareholder").
A. The Company proposes to enter an Agreement and Plan of Merger (the "Merger Agreement") with the [PARTY A], which will result in the merger of the Company with the [PARTY A] (the "Merger").
B. The approval of holders of Securities of the Company is a condition to the consummation of the Merger.
C. The Shareholder holds Securities in the Company, namely the Owned Shares.
D. As an inducement to the [PARTY A] to enter into the Merger Agreement, the [PARTY A] has required that [all/certain] holders of Securities of the Company, including the Shareholder, enter into a voting support agreement.
The parties agree as follows:
1. Agreement to Vote
1.1. Voting of Owned Shares. At any meeting of the holders of Securities of the Company, however called, or at any adjournment or postponement of any such meeting, and on every action or approval by written consent of the holders of Securities of the Company, and unless otherwise directed in writing by Company, the Shareholder shall cause all the Owned Shares that it owns as of that meeting's record date to be voted as follows:
[LIST MATTERS COVERED BY THIS AGREEMENT AND HOW SHAREHOLDER SHOULD VOTE]
1.2. Voting on Other Proposed Acquisitions. The Shareholder shall, at any meeting of the holders of Securities of the Company, however called, or at any adjournment or postponement of any such meeting, vote the Owned Shares against
(a) any proposal for the acquisition of Securities of the Company other than the Merger,
(b) any other transaction, proposal, or agreement made in opposition to the approval of the Merger or in competition or inconsistent with the Merger and the other transactions contemplated by the Merger Agreement,
(c) any other action, agreement or transaction that is intended, that would be reasonably expected to, or the effect of which would be reasonably expected to, impede, discourage, or otherwise adversely affect
(i) the Merger,
(ii) any of the other transactions contemplated by the Merger Agreement, or
(iii) the Shareholder's performance of its obligations under this agreement.
1.3. Definition of "Securities" In this agreement, "Securities" means all securities of the Company (including all shares of Company common stock and all options, restricted stock units, warrants, and other rights to acquire, by purchase, conversion, or otherwise, any shares of capital stock or other securities of the Company).
1.4. Definition of "Owned Shares" In this agreement, "Owned Shares" means
(a) all Securities that the Shareholder owns as of the date of this agreement, and
(b) all additional Securities of which Shareholder acquires ownership after the date of this agreement, whether such an acquisition occurs
(i) as a result of purchases or other transfers of Company common stock to the Shareholder, or
(ii) by virtue of a stock dividend, stock split, recapitalization, reclassification, subdivision, combination, or exchange of shares.
2. Grant of Proxy
2.1. Proxy for Owned Shares. If the Shareholder for any reason fails to vote the Owned Shares in accordance with the terms of this agreement, the Shareholder hereby grants to a holder of Securities of the Company that is designated by the Board and that is a party to a voting agreement substantially similar to this agreement a proxy coupled with an interest in all the Owned Shares, with the power to act alone and with full power of substitution.
2.2. Irrevocability of Proxy. This proxy will be irrevocable until this agreement terminates in accordance with its terms or this agreement is amended to delete this section 2 (Grant of Proxy).
2.3. Voting by Proxy. The designated proxy shall vote all the Owned Shares in the manner provided in section 1 (Agreement to Vote) and sign all appropriate documents consistent with this agreement on the Shareholder's behalf.
2.4. Survival of Proxy. This proxy will survive
(a) If the Shareholder is an individual, his or her death, incompetency, and disability, and
(b) for any corporate entity that is a party to this agreement, the merger or reorganization of that party.
3. Term and Termination
3.1. Effective Date. This agreement begins on the Effective Date.
3.2. Termination. This agreement terminates upon the occurrence of the earliest of
(a) the date that the merger becomes effective in accordance with the Merger Agreement,
(b) the termination of the Merger Agreement in accordance with its terms,
(c) the Shareholder no longer holds any Owned Shares,
(d) the termination of this agreement by written consent of all parties, and
(e) the time, if any, at which the Company's Board of Directors makes a change from recommending to the holders of its Securities the approval of the Merger to recommending its rejection.
3.3. No Effect on Liability. Nothing in section 3.2 (Termination) relieves or otherwise limits any party's liability for any breach of this agreement prior to termination.
4. Shareholder Representations and Warranties. The Shareholder represents and warrants to the other parties as follows, acknowledging that they are relying on these representations and warranties:
4.1. No Conflicts. The Shareholder is under no restriction or obligation that may affect the performance of its obligations under this agreement.
4.2. Holder of Record. The Shareholder is a holder of record and the beneficial owner, within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934 (the "Exchange Act"), of certain Securities of the Company.
4.3. Title to Securities. As of the date of this agreement, the Shareholder
(a) holds of record, free and clear of any liens (other than immaterial liens), the number of outstanding Securities listed in Schedule A,
(b) holds, free and clear of any liens (other than immaterial liens), the options, restricted stock units, warrants, and other rights to acquire Securities listed under the heading Options and Other Rights in Schedule A,
(c) owns the additional securities of the Company listed under the heading Additional Securities Beneficially Owned in Schedule A, and
(d) does not directly or indirectly own any shares of capital stock or other securities of the Company, or any option, restricted stock unit, warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock or other securities of the Company, other than the shares and options, restricted stock units, warrants and other rights listed in Schedule A.
4.4. Accuracy of Representations. The representations and warranties contained in this agreement are accurate in all respects as of the date of this agreement, and will be accurate in all respects at all times until the date that this agreement terminates in accordance with section 3.2 (Termination).
5. Company Representations and Warranties. The Company represents and warrants to the other parties as follows, acknowledging that they are relying on these representations and warranties:
5.1. Existence. The Company is a corporation incorporated and existing under the laws of the jurisdiction of its incorporation.
5.2. Power and Capacity. The Company has the corporate power and capacity to carry on business, to own properties and assets, and to sign and perform its obligations, under this agreement.
5.3. Authorization. The Company has taken all necessary corporate action to authorize its signature of, and the performance of its obligations under, this agreement.
5.4. Execution and Delivery. The Company has duly executed and delivered this agreement.
5.5. Enforceability. This agreement constitutes a legal, valid, and binding obligation, enforceable against the Company in accordance with its terms.
5.6. No Conflicts. The Company is under no restriction or obligation that may affect the performance of its obligations under this agreement.
5.7. Bankruptcy, etc. Neither the Company nor, to its knowledge, any other Person, has taken or authorized any proceedings relating to its bankruptcy, insolvency, liquidation, dissolution, or winding up.
5.8. Consents and Approvals. Except for any filings required under the Exchange Act, the Company is not required to take any action or obtain any approval, authorization, consent, or order of, or make any filing, registration, qualification, or recording with, any governmental authority or any other Person in connection with the signature of, or the performance of its obligations under, this agreement.
6. [PARTY A] Representations and Warranties. The [PARTY A] represents and warrants to the other parties as follows, acknowledging that they are relying on these representations and warranties:
6.1. Existence. The [PARTY A] is a corporation incorporated and existing under the laws of the jurisdiction of its incorporation.
6.2. Power and Capacity. The [PARTY A] has the corporate power and capacity to carry on business, to own properties and assets, and to sign and perform its obligations, under this agreement.
6.3. Authorization. The [PARTY A] has taken all necessary corporate action to authorize its signature of, and the performance of its obligations under, this agreement.
6.4. Execution and Delivery. The [PARTY A] has duly executed and delivered this agreement.
6.5. Enforceability. This agreement constitutes a legal, valid, and binding obligation, enforceable against the [PARTY A] in accordance with its terms.
6.6. No Conflicts. The [PARTY A] is under no restriction or obligation that may affect the performance of its obligations under this agreement.
6.7. Bankruptcy, etc. Neither the [PARTY A] nor, to its knowledge, any other Person has taken or authorized any proceedings relating to its bankruptcy, insolvency, liquidation, dissolution, or winding up.
6.8. Consents and Approvals. Except for any filings required under the Exchange Act, the [PARTY A] is not required to take any action or obtain any approval, authorization, consent, or order of, or make any filing, registration, qualification, or recording with, any governmental authority or any other Person in connection with the signature of, or the performance of its obligations under, this agreement.
7. Acknowledgements. The parties acknowledge to each other as follows:
7.1. Shareholder's Capacity. The Shareholder is entering into this agreement solely in its capacity as a holder of Securities of the Company and not in any other capacity (including as a director of the Company). Nothing in this agreement requires the Shareholder to take, or forbear from taking, any action other than to vote its Owned Shares in accordance with this agreement.
7.2. Deemed Ownership of Owned Shares. The Shareholder is deemed to own or to have acquired ownership of an Owned Share if the Shareholder is
(a) its owner of record, or
(b) its beneficial owner, within the meaning of Rule 13d-3 under the Exchange Act.
7.3. Stock Splits, etc. In the event of any stock split, stock dividend, recapitalization, reorganization, or similar corporate restructuring, any Securities issued in connection with the Owned Shares shall become Owned Shares for purposes of this agreement.
7.4. Manner of Voting. The Shareholder may vote the Owned Shares in accordance with this agreement in person, by proxy, by written consent, or in any other manner permitted by applicable law.
8. Transfer of Owned Shares
8.1. Transfer Restrictions. The Shareholder shall not, without Company's prior written consent, Transfer (or cause or permit the Transfer of) any of the Owned Shares, or enter into any related agreement. Any Transfer, or purported Transfer, of any Owned Shares in breach of this agreement is void.
8.2. No Voting Trust. The Shareholder shall not deposit (or cause or permit the deposit of) any Owned Shares in a voting trust or grant any proxy or enter into any voting agreement or similar agreement with respect to any of the Owned Shares.
8.3. Definition of "Transfer." In this agreement, a Person will be deemed to have effected a "Transfer" of a Security if that Person directly or indirectly
(a) sells, pledges, encumbers, grants an option with respect to, transfers, or disposes of the Security or any interest in the Security to any Person other than the Company,
(b) enters into an agreement or commitment contemplating the possible sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of, or disposition of the security or any interest in the Security to any Person other than Company, or
(c) reduces that Person's beneficial ownership of, interest in, or risk relating to the Security.
9. No Inconsistent Agreements. The Shareholder shall not
9.1. enter into any voting agreement, voting trust, or other agreement or arrangement relating to the Owned Shares,
9.2. transfer any of the Owned Shares,
9.3. grant any proxy, consent, or power of attorney relating to the Owned Shares, or
9.4. enter into any agreement or knowingly take any action that would
(a) make any representation or warranty contained in this agreement untrue or incorrect in any material respect, or
(b) have the effect of preventing the Shareholder from performing any of its obligations under this agreement.
10. Actions in Good Faith. Each party shall at all times and in good faith assist in carrying out all of the terms of this agreement and in taking of actions as may be necessary or appropriate in order to protect each party's rights against impairment.
11. Restrictive Legend. Until the termination of this agreement, the Company shall ensure that each certificate representing any of the Securities of the Company are marked with the following legend:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING AGREEMENT (A COPY OF WHICH MAY BE OBTAINED FROM THE ISSUER). BY ACCEPTING ANY INTEREST IN THESE SHARES, THE PERSON HOLDING THAT INTEREST WILL BE DEEMED TO AGREE TO AND BECOME BOUND BY THE TERMS OF THE VOTING AGREEMENT.
12. Equitable Relief
12.1. Acknowledgement of Irreparable Damage. The parties agree that irreparable damage that is not compensable by monetary damages alone would occur if any terms of this agreement were not performed in accordance with its terms or were otherwise breached.
12.2. Right to Seek Relief. The Shareholder agrees that, in the case of any breach or threatened breach by it of any obligation contained in this agreement, the Company may, in addition to any other remedy that may be available to it, obtain any equitable relief available to it, including
(a) a decree or order of specific performance to enforce the performance of that obligation, and
(b) an injunction restraining the breach or threatened breach.
12.3. No Conditions to Remedy. The Shareholder
(a) acknowledges that neither the Company nor any other Person will be required to post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this section 12 (Equitable Relief), and
(b) irrevocably and unconditionally waives any right that it may have to require the posting of any such bond or similar instrument.
13. Dissenter and Appraisal Rights. The Shareholder hereby irrevocably and unconditionally waives any rights of appraisal, any dissenter's rights, and any similar rights that it may have in connection with the Merger and the Owned Shares.
14. General Provisions
14.1. Entire agreement. This agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.
14.2. Further Assurances. Each party, upon receipt of notice from the other party, shall sign (or cause to be signed) all further documents, do (or cause to be done) all further acts, and provide all assurances as may reasonably be necessary or desirable to give effect to the terms of this agreement.
14.3. Amendment. This agreement may only be amended by a written document signed by both parties.
14.4. Definition of "Person." In this agreement, "Person" includes
(a) any corporation, company, limited liability company, partnership, governmental authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and
(b) any individual.
14.5. Assignment. The Shareholder may not assign this agreement or any of its rights or obligations under this agreement without the other parties' prior written consent. The [PARTY A] may assign this agreement or any of its rights and obligations under this agreement, effective upon notice to the Shareholder,
(a) to any subsidiary or affiliate, or
(b) in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of the [PARTY A]'s obligations.
14.6. No Partnership. Nothing contained in this agreement creates a partnership, joint venture, principal-and-agent, or any similar relationship between the parties.
14.7. Third Party Beneficiaries. No Person other than the parties themselves has any rights or remedies under this agreement.
14.8. Public Announcements. Unless required by law[ or by any stock exchange on which any of the securities of that party or any of its affiliates are listed or by any securities commission or other similar regulatory authority having jurisdiction over that party or any of its affiliates], no party to this agreement shall make any press release or other public announcement regarding the transactions provided for in this agreement without the prior written consent of each other party[, which will not be unreasonably withheld or delayed/which may be arbitrarily and unreasonably withheld or delayed, at each applicable party's discretion].
14.9. Acknowledgement of Contract Terms. If the Shareholder is an individual, he or she acknowledges that he or she
(a) has read this agreement,
(b) understands its terms,
(c) has had the opportunity to consult with independent legal counsel, and
(d) has signed this agreement voluntarily.
(a) Form of Notice. All notices and other communications between the parties must be in writing.
(b) Method of Notice. Notices must be given by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.
(c) Receipt of Notice. A notice given in accordance with this agreement will be effective upon receipt by the party to which it is given or, if mailed, upon the earlier of receipt and the fifth Business Day following mailing.
14.11. Remedies Cumulative. The rights and remedies available to a party under this agreement are cumulative and in addition to, not exclusive of or in substitution for, any rights or remedies otherwise available to that party.
14.12. Survival. Sections 2.4 (Survival of Proxy) and 3.3 (No Effect on Liability) survive the termination of this agreement.
14.13. Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
14.14. Waiver. A party's failure or neglect to enforce any of rights under this agreement will not be deemed to be a waiver of that party's rights.
14.15. Governing Law. This agreement will be governed by and construed in accordance with the laws of the State of [GOVERNING LAW STATE], without regard to its conflict of laws rules.
14.16. Dispute Resolution
(a) Arbitration. Any dispute or controversy arising under or in connection with this agreement will be settled exclusively by arbitration in [STATE], in accordance with the rules of the American Arbitration Association then in effect by [NUMBER OF ARBITRATORS] arbitrator(s).
(b) No Punitive Damages. The arbitrator(s) will not have the power to award punitive damages.
(c) Judgment. The successful party may enter the arbitral judgment in any court having jurisdiction.
14.17. Waiver of Jury Trial. Each party irrevocably waives its rights to trial by jury in any action or proceeding arising out of or relating to this agreement or the transactions relating to its subject matter.
14.18. Attorney Fees. If either party brings legal action to enforce its rights under this agreement, the prevailing party will be entitled to recover its expenses (including reasonable attorneys' fees) incurred in connection with the action and any appeal.
14.19. Consent to Jurisdiction
(a) Jurisdiction of Selected Courts. The parties hereby irrevocably and unconditionally
(i) consent to submit to the exclusive jurisdiction of the Selected Courts for any action or proceeding arising out of or relating to this agreement, and agree not to commence any action or proceeding relating to this agreement except in the Selected Courts, although a party may commence an action or proceeding in a court other than a Selected Court but only for the purpose of enforcing an order or judgment issued by one of the Selected Courts,
(ii) consent to service of any process or other document in any action or proceeding made by registered first-class mail, postage prepaid, return receipt requested or by nationally recognized courier guaranteeing overnight delivery and agree that service of the process or other document will be effective service for any action or proceeding brought against it in a Selected Court, although this does not affect either party's right to serve process in any other manner permitted by law,
(iii) waive any objection to the laying of venue of any action or proceeding arising out of this agreement in the Selected Courts, and
(iv) waive and agree not to plead or claim in any Selected Court that an action or proceeding brought in any Selected Court has been brought in an inconvenient forum.
(b) Definition of "Selected Courts." In this agreement, "Selected Courts" means, collectively, the federal and state courts located in the State of [SELECTED STATE] in [SELECTED COUNTY] County.
(a) Statutes, etc. Unless specified otherwise, any reference in this agreement to a statute includes the rules and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those rules or policies.
(b) Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa, words importing gender include all genders.
(c) Headings. The headings used in this agreement and its division into sections, schedules, and other subdivisions do not affect its interpretation.
(d) Internal References. References in this agreement to sections and other subdivisions are to those parts of this agreement.
14.21. Schedules and Exhibits. The following are attached to and form part of this agreement:
(a) Schedule A. Owned Shares
14.22. Counterparts. This agreement may be signed in any number of counterparts, each of which is an original and all of which taken together form one single document.
14.23. Effectiveness of Agreement. This agreement is effective as of the date shown at the top of the first page, even if any signatures are made after that date.
This agreement has been signed by the parties.
[PARTY A NAME]
[SIGNATURE BLOCK FOR AN INDIVIDUAL]
SCHEDULE A: Owned Shares
1. Outstanding Securities:
2. Options and Other Rights:
3. Additional Securities Beneficially Owned: