This Voting Agreement ("Agreement ") is entered into as of [EFFECTIVE DATE], between [COMPANY], [CORPORATE ENTITY] (the "Company") and [STOCKHOLDER NAME] ("Stockholder").
A. Stockholder is a holder of record and the beneficial owner, within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), of certain shares of common stock of the Company.
B. [COMPANY] is [COMPANY DESCRIPTION]
C. [PURPOSE OF AGREEMENT].
The parties to this Voting Agreement, intending to be legally bound, agree as follows:
1.Definitions. For purposes of this Agreement:
1.1. "Expiration Date" shall mean [THE DATE OF OCCURRENCE OF SOME EVENT]
1.2. "Stockholder" shall be deemed to Own or to have acquired Ownership of a security if Stockholder: (i) is the record owner of such security; or (ii) is the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of such security.
1.3. "Person" shall mean any individual, private or public company, corporation (including not-for-profit), general or limited partnership, unlimited or limited liability company, joint venture, estate, trust, association, organization or other entity of anykind or nature, including a government or political subdivision or an agency or instrumentality thereof.
1.4. "Subject Securities" shall mean: (i) all securities of the Company (including all shares of Company Common Stock and all options, restricted stock units, warrants and other rights to acquire shares of Company Common Stock) Owned by Stockholder as of the date of this Agreement; and (ii) all additional securities of the Company (including all additional shares of Company Common Stock and all additional options, restricted stock units, warrants and other rights to acquire shares of Company Common Stock) of which Stockholder acquires Ownership during the Voting Period (whether such acquisition is a result of purchases or other transfers of Company Common Stock to Stockholder or by virtue of a stock dividend, stock split, recapitalization, reclassification, subdivision, combination or exchange of shares).
1.5. "Voting Period" shall mean the period commencing on the date of this Agreement and ending upon Termination of this Agreement.
2.Voting of Shares. Stockholder hereby agrees that at any meeting of the stockholders of the Company, however called, or at any adjournment or postponement thereof and on every action or approval by written consent of the stockholders of the Company, unless otherwise directed in writing by Company, Stockholder shall cause any and all issued and outstanding shares owned by Stockholder as of the record date with respect to such meeting to be voted:
[LIST MATTERS COVERED BY THIS AGREEMENT AND HOW STOCKHOLDER SHOULD VOTE]
3.Transfer of Securities.
3.1. Transfer Restrictions. The Stockholder shall not Transfer (or cause or permit the Transfer of) any of the Securities, or enter into any agreement relating thereto, except withCompany's prior written consent. Any Transfer, or purported Transfer, of Securities in breach or violation of this Agreement shall be void and of no force or effect.
3.2. Transfer of Voting Rights. The Stockholder shall not deposit (or cause or permit the deposit of) any Securities in a voting trust or grant any proxy or enter into any voting agreement or similar agreement with respect to any of the Securities.
3.3. Definition of "Transfer". A Person shall be deemed to have effected a Transfer of a security if such Person directly or indirectly:
3.3.1. sells, pledges, encumbers, grants an option with respect to, transfers or disposes of such security or any interest in such security to any Person other than Company;
3.3.2. 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 such security or any interest therein to any Person other than Company; or
3.3.3. reduces such Person's beneficial ownership of, interest in or risk relating to such security.
4.Grant of Proxy. Should the provisions of this Agreement be construed to constitute the granting of proxies, such proxies shall be deemed coupled with an interest and are irrevocable for the Term of this Agreement.
5.Representations and Warranties of Stockholder. Stockholder hereby represents and warrants to Company as follows:
5.1. Authority. Stockholder has the power, authority and capacity to execute and deliver this Agreement and to perform Stockholder's obligations hereunder and thereunder.
5.2. Authorization. This Agreement has been duly executed and delivered by Stockholder and, assuming the due authorization, execution and delivery of this Agreement by Company, constitute legal, valid and binding obligations of Stockholder, enforceable against Stockholder in accordance with their terms, subject to: (a) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (b) rules of law governing specific performance, injunctive relief and other equitable remedies.
5.3. No Conflicts. The execution, delivery and performance of this Agreement will not result in:
5.3.1.Laws. A violation of any law, judgment or order applicable to the Stockholder.
5.3.2.Contracts. A conflict with, or result in a breach of, or constitute a default, or give rise to any right of termination, acceleration or cancellation, under any material contract.
5.4. No Consents. The execution and delivery of this Agreement by Stockholder does not, and the performance of this Agreement by Stockholder will not, require any consent of any Person.
5.5. Title to Securities. As of the date of this Agreement:
5.5.1.Stockholder holds of record (free and clear of any liens (other than immaterial liens)) the number of outstanding shares set forth in Exhibit A;
5.5.2.Stockholder holds (free and clear of any liens (other than immaterial liens)) the options, restricted stock units, warrants and other rights to acquire shares set forth under the heading Options and Other Rights in Exhibit A;
5.5.3.Stockholder Owns the additional securities of the Company set forth under the heading Additional Securities Beneficially Owned in Exhibit A; and
5.5.4.Stockholder 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 set forth in Exhibit A.
5.6. 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 Expiration Date.
6.Representations and Warranties of Company. Company hereby represents and warrants to the Stockholder as follows:
6.1. Organization. Company is dulyorganized, validly existing and in good standing under the laws of the jurisdiction of its formation.
6.2. Authority. Company has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
6.3. Authorization. The execution and delivery by Company of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Company.
6.4. Enforceability. Company has duly executed and delivered this Agreement, and this Agreement constitutes the legal, valid and binding obligation of Company, enforceable against Company in accordance with its terms.
6.5. No Conflicts. The execution, delivery and performance of thisagreement will not result in:
6.5.1.Charter Documents. A violation of the Company's certificate of incorporation or bylaws.
6.5.2.Laws. A violation of any law, judgment or order applicable to the Company.
6.5.3.Contracts. A conflict with, or result in a breach of, or constitute a default, or give rise to any right of termination, acceleration or cancellation, under any material contract.
6.6. Consent and Approval. Except for any filings required under the Exchange Act, no consent or approval of, or registration, declaration or filing with, any Governmental Authority is required to be obtained or made by or with respect to Company in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.
7.Term and Termination.
7.1. Term. This Agreement shall be effective as of the date hereof and shall continue in effect until and shall terminate on the Expiration Date.
7.2. Termination. Any party to this Agreement shall cease to be a party hereto and this Agreement shall terminate with respect to such party at the time such party no longer owns any Shares.
7.3. Effect of Termination. No termination of this Agreement (or any provision hereof) shall
7.3.1. relieve any party of any obligation or liability for damages resulting from such party's breach of this Agreement (or any provision hereof) prior to its termination or the termination of this Agreement with respect to such party or
7.3.2. terminate any provision hereof that, by its terms, survives such termination.
8.1. Acknowledgement of Irreparable Damage. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were notperformed in accordance with its specific terms or were otherwise breached.
8.2. Equitable Relief. Stockholder agrees that, in the event of any breach or threatened breach by Stockholder of any covenant or obligation contained in this Agreement, Company shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to obtain:
8.2.1. a decree or order of specific performance to enforce the observance and performance of such covenant or obligation; and
8.2.2. an injunction restraining such breach or threatened breach.
8.3. No Conditions to Remedy. Stockholder further agrees that neither Company nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with oras a condition to obtaining any remedy referred to in this Section, and Stockholder irrevocably waives any right he or it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
9.1. Notices. Allnotices hereunder shall be sufficiently given for all purposes hereunder if in writing and delivered personally, sent by documented internationally-recognized overnight delivery service or, to the extent receipt is confirmed, telecopy, facsimile or other electronic transmission service to the appropriate address or number as set forth below, or to such other address as any party shall provide by like notice to the other parties to this Agreement:
if to Stockholder:
if to Company:
9.2. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective heirs, successors, assigns, administrators, executorsand other legal representatives.
9.3. No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
9.4. Assignment. This Agreement may not be assigned by operation of Law or otherwise without the express written consent of the parties hereto (which consent may be granted or withheld in the sole discretion of the parties hereto), as the case may be, and any attempted assignment without such consent shall be null and void; provided, however, that Company shall have the right to assign this Agreement to a direct or indirect wholly owned subsidiary of Company; provided, further, that any such assignment shall not relieve Company of its obligations hereunder.
9.5. Counterparts. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. The exchange of a fully executed Voting Agreement (in counterparts or otherwise) by facsimile or electronic delivery shall be sufficient to bind the parties to the terms and conditions of this Agreement.
9.6. Captions. The captions contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
9.7. Construction. In this Agreement, unless a clear contrary intention appears:
9.7.1. the singular number includes the plural number and vice versa;
9.7.2. reference to any Person include such Person's legal representatives, successors, assigns, but if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually;
9.7.3. reference to either gender includes the other gender;
9.7.4. reference to any agreement, schedule, document or instrument means such agreement, schedule, document or instrument as amended or modified and in effect in accordance with the terms thereof;
9.7.5. reference to any law means such law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder, and reference to any section or other provision of any law means that provision of such law from time to time in effect and constituting the substantive amendment, modification, codification, replacement or reenactment of such section or other provision;
9.7.6. hereunder, hereof, hereto, and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof;
9.7.7. including (and with correlative meaning include ) means including without limiting the generality of any description preceding such term;
9.7.8. any references herein to a specific section, schedule, annex or exhibit shall refer, respectively, to sections, schedules, annexes or exhibits of this Agreement;
9.7.9. references to documents, instruments or agreements shall be deemed to refer as well to all addenda, exhibits (other than exhibits constituting agreements, which shall only become legally binding upon execution and delivery by the parties thereto), schedules or amendments thereto from time to time.
9.8. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
9.9. Further Assurances. From time to time and without additional consideration, Stockholder shall execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, proxies, consents and other instruments, and shall take such further actions, as Company may reasonably request for the purpose of carrying out and furthering the intent of this Agreement.
9.10. Amendments. This Agreement may not be amended, modified, altered or supplemented other than by means of a written instrument duly executed and delivered on behalf of each of the parties to this Agreement.
9.11. Attorney's Fees. If any legal proceeding is brought relating to this Agreement or the enforcement of any provision of this Agreement is brought against Stockholder, the prevailing party shall be entitled to recover reasonable attorney's fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).
9.12. Expenses. All costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.
9.13. Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of [GOVERNING LAW STATE], without regard to principles of conflicts of law thereof.
9.14. Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGALPROCEEDING ARISING OUT OF OR RELATING TO THIS VOTING AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS VOTING AGREEMENT.
9.15. Waiver. A party's failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
9.16. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings between the parties with respect thereto.
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IN WITNESS WHEREOF, the Company and Stockholder have caused this Agreement to be executed as of the date first written above.
EXHIBIT A. Stockholder Securities
2.Options and Other Rights:
3.Additional Securities Beneficially Owned: