CAST OR CONSENT SHALL BE
GIVEN IN ACCORDANCE WITH SUCH PROCEDURES RELATING THERETO SO AS TO ENSURE THAT
IT IS DULY COUNTED FOR PURPOSES OF DETERMINING THAT A QUORUM IS PRESENT AND FOR
PURPOSES OF RECORDING THE RESULTS OF SUCH VOTE OR CONSENT.
EACH STOCKHOLDER
AGREES NOT TO ENTER INTO ANY AGREEMENT OR COMMITMENT THE EFFECT OF WHICH WOULD
NOT BE IN ACCORDANCE OR INCONSISTENT WITH THE PROVISIONS AND AGREEMENTS
CONTAINED IN THIS AGREEMENT.
1.2.
PROXY.
(A)
EACH STOCKHOLDER, BY THIS AGREEMENT, WITH
RESPECT TO ITS SHARES, DOES HEREBY CONSTITUTE AND APPOINT PARENT, OR ANY NOMINEE
OF PARENT, WITH FULL POWER OF SUBSTITUTION, AT ANY TIME DURING THE TERM, AS ITS
TRUE AND LAWFUL ATTORNEY AND PROXY (ITS "PROXY"), FOR AND IN ITS NAME, PLACE AND
STEAD, TO VOTE, OR CAUSE TO BE VOTED, EACH OF SUCH SHARES AS ITS PROXY, AT EVERY
ANNUAL, SPECIAL OR OTHER MEETING, INCLUDING ANY ADJOURNMENTS OR POSTPONEMENTS
THEREOF, OF THE STOCKHOLDERS OF THE COMPANY FOR THE PURPOSE OF CONSIDERING ANY
MATTER REFERRED TO IN SECTION 1.1 (INCLUDING THE RIGHT TO SIGN ITS NAME (AS
STOCKHOLDER) TO ANY CONSENT, CERTIFICATE OR OTHER DOCUMENT RELATING TO THE
COMPANY THAT THE LAW OF THE STATE OF DELAWARE MAY PERMIT OR REQUIRE).
(B)
THIS POWER OF ATTORNEY IS IRREVOCABLE, IS
GRANTED IN CONSIDERATION OF PARENT AND MERGER SUB ENTERING INTO THE MERGER
AGREEMENT AND IS COUPLED WITH AN INTEREST SUFFICIENT IN LAW TO SUPPORT AN
IRREVOCABLE POWER.
THIS APPOINTMENT SHALL REVOKE ALL PRIOR POWERS OF ATTORNEY
AND PROXIES APPOINTED BY ANY STOCKHOLDER AT ANY TIME WITH RESPECT TO THE SHARES
AND NO SUBSEQUENT POWERS OF ATTORNEY OR PROXIES WILL BE APPOINTED BY SUCH
STOCKHOLDER, OR BE EFFECTIVE, WITH RESPECT THERETO DURING THE TERM OF THIS
AGREEMENT.
EXCEPT AS OTHERWISE PROVIDED FOR HEREIN, EACH STOCKHOLDER HEREBY
(A) RATIFIES AND CONFIRMS ALL THAT THE PROXIES APPOINTED HEREUNDER MAY LAWFULLY
DO OR CAUSE TO BE DONE BY VIRTUE HEREOF AND (B) AFFIRMS THAT SUCH IRREVOCABLE
PROXY IS EXECUTED AND INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 212(E) OF THE DGCL.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and warrants to
Parent as follows:
2.1.
DUE ORGANIZATION AND AUTHORIZATION.
IF SUCH
STOCKHOLDER IS A CORPORATION OR PARTNERSHIP, (A) IT IS DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS ORGANIZATION OR FORMATION
AND HAS ALL REQUISITE POWER TO EXECUTE AND DELIVER THIS AGREEMENT, TO APPOINT
PARENT AS ITS PROXY, TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY AND TO
CARRY OUT ITS OBLIGATIONS HEREUNDER AND (B) THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE APPOINTMENT OF PARENT AS SUCH STOCKHOLDER'S PROXY AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY AUTHORIZED
BY ALL NECESSARY ACTION ON THE PART OF SUCH STOCKHOLDER.
THIS AGREEMENT HAS
BEEN DULY EXECUTED AND DELIVERED BY OR ON BEHALF OF SUCH STOCKHOLDER AND,
ASSUMING ITS DUE AUTHORIZATION, EXECUTION AND DELIVERY BY PARENT, CONSTITUTES A
2
LEGAL, VALID AND BINDING OBLIGATION