VOTING AND OPTION AGREEMENT
Voting and Option Agreement (this "Agreement"), dated as of
January __, 2004 by and among Imperial Parking Management, LLC,
a Delaware limited liability company ("Parent"), and the
stockholder(s) listed on the signature pages hereto
(collectively, the "Stockholders").
WHEREAS, simultaneously with the execution and delivery of
this Agreement, Parent, IPK Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of Parent ("Merger
Sub"), and Imperial Parking Corporation., a Delaware corporation
(the "Company"), are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"),
providing, among other things, for the merger of Merger Sub with
and into the Company with the Company continuing as the
surviving corporation and wholly owned subsidiary of Parent (the
"Merger"); and
WHEREAS, as of the date hereof, each Stockholder is the
Beneficial Owner (as defined below) of, and has the sole right
to vote and dispose of that number of shares of common stock,
par value $0.01 per share of the Company (the "Company Shares"),
set forth beside such Stockholder's name on Schedule A hereto;
and
WHEREAS, concurrently with the execution of the Merger
Agreement, and as a condition to Merger Sub and Parent entering
into the Merger Agreement and incurring the obligations set
forth therein, Parent has required that the Stockholders enter
into this Agreement and that certain other substantial
stockholders of the Company enter into agreements to vote their
shares in favor of the Merger Agreement and to take and or
refrain from taking the other actions specified therein;
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 any Stockholder, "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, however, 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 a director or officer of the Company.
"Alternative Transaction" means (a) any transaction of the
type described in the definition of Acquisition Proposal
contained in the Merger Agreement other than the transactions
contemplated by the Merger Agreement and (b) any other action,
agreement or transaction that would result in a breach of any
representation, warranty, covenant or other obligation or
agreement of the Company contained in the Merger Agreement (or
of any Stockholder contained in this 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.
"Beneficial Owner" with respect to any securities means a
Person that has Beneficial Ownership of such securities.
"Equity Interest" means with respect to any Person, any and
all shares, interests, participations, rights in, or other
equivalents (however designated and whether voting or non-
voting) of, such Person's capital stock or other equity
interests (including, without limitation, partnership or
membership interests in a partnership or limited liability
company or any other interest or participation that confers on a
Person the right to receive a share of the profits and losses,
or distributions of assets, of the issuing Person) whether
outstanding on the date hereof or issued after the date hereof.
"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).
"Subject Shares" means, with respect any Stockholder,
without duplication, (i) Company Shares Beneficially Owned by
such Stockholder on the date hereof as described on Schedule A
hereto, (ii) any additional Company Shares acquired by such
Stockholder or over which it acquires Beneficial Ownership after
the date hereof and prior to the Effective Time, (iii) any
Equity Interests of any Person that such Stockholder 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
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
VOTING AND RELATED COVENANTS OF THE STOCKHOLDERS
Section 2.1 Agreement to Vote. Each Stockholder agrees
that at any meeting of the stockholders 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 stockholders of the
Company given or solicited prior to the Expiration Date, such
Stockholder 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 approval of adoption of the Merger Agreement and
the transactions contemplated thereby, and any actions required
in furtherance thereof and (ii) against any Alternative
Transaction.
Section 2.2 Revocation of Proxies; Cooperation. Each
Stockholder agrees as follows:
(a) Such Stockholder hereby represents and warrants that
any proxies heretofore given by such Stockholder in respect of
the Subject Shares are not irrevocable and such Stockholder,
except as set forth on Schedule A hereto, hereby revokes any and
all such prior proxies with respect to such Subject Shares.
Prior to the Expiration Date, except as set forth on Schedule A
hereto, such Stockholder 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 into
a voting trust or enter into a voting agreement (other than this
Agreement) with respect to any of the Subject Shares.
(b) At the Company's expense, such Stockholder will
provide information reasonably requested by the Company, Parent
or Merger Sub for any regulatory application or filing made or
approval sought for, or in connection with, the Merger and the
other transactions contemplated by the Merger Agreement.
(c) Such Stockholder will take all action necessary to (i)
in connection with any duly held and called meeting of
stockholders of the Company, or any written consent of, or other
action by, the stockholders of the Company, prior to the
Expiration Date, vote the Subject Shares in accordance with the
terms of this Agreement, (ii) assuming the consummation of the
Merger in accordance with the terms of the Merger Agreement,
permit the Subject Shares to be acquired in the Merger and (iii)
prevent creditors in respect of any pledge of such shares from
exercising their rights under such pledge in a manner
inconsistent with the terms of this Agreement.
Section 2.3 No Solicitation. Each Stockholder agrees
that:
(a) Such Stockholder shall not, and shall cause its
Affiliates and its and their directors, employees, attorneys,
accountants, advisors, representatives and agents ("
Representatives") not to, directly or indirectly, (i) solicit or
initiate or knowingly encourage or take any other action to
facilitate the submission of any Acquisition Proposal or any
other proposal related to an Alternative Transaction or initiate
an Alternative Transaction, (ii) participate or engage in
substantive discussions or negotiations with, or disclose or
provide any non-public information relating to the Company or
its Subsidiaries to, or knowingly facilitate any inquiries by,
any Person who is at such time, making or contemplating any
proposal that constitutes, or that would reasonably be expected
to lead to, any Acquisition Proposal or any Alternative
Transaction, (iii) knowingly facilitate the making of any
proposal that constitutes, or that would reasonably be expected
to lead to, any Acquisition Proposal or Alternative Transaction,
(iv) approve, endorse, recommend or vote for any Acquisition
Proposal or Alternative Transaction, or (v) enter into any
agreement or agreement in principle, letter of intent or similar
document contemplating or otherwise relating to any Acquisition
Proposal or Alternative Transaction. Notwithstanding the
foregoing, the restrictions contained in this Section 2.3(a)
shall not be applicable at any time that the Company and the
Company Representatives are permitted to take the actions
described in clause (ii) of subsection (b) of Section 5.2 of the
Merger Agreement.
(b) Notwithstanding anything to the contrary contained in
this Agreement: (i) the provisions of this Agreement apply
solely to such Stockholder when acting in his or its capacity as
a stockholder 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 Merger Sub under the
Merger Agreement); and (ii) none of the provisions of this
Agreement shall be construed to prohibit, limit or restrict such
Stockholder, any of its Affiliates or any of their respective
representatives (A) who is a member of the Board of Directors of
the Company from exercising his fiduciary duties to the Company
by voting or taking other action in his capacity as a director
or (B) who is an officer or employee of the Company from taking
any action whatsoever in such capacity.
Section 2.4 No Transfer of Subject Shares; Publicity.
Each Stockholder agrees that:
(a) During the term of this Agreement, such Stockholder
shall not (i) subject any of the Subject Shares to, or suffer
to exist on any of the Subject Shares, any Encumbrances or (ii)
Transfer or agree to Transfer any of the Subject Shares (other
than by operation of the Merger) or grant any proxy or power-of-
attorney with respect to any of the Subject Shares. The
foregoing restrictions will not apply to Transfers to Affiliates
of such Stockholder who have executed an instrument, in form and
substance reasonably satisfactory to Parent, agreeing to be
bound by this Agreement to the same extent as such Stockholder
with respect to the Subject Shares to which such Transfer
relates; provided that such Stockholder shall remain liable for
any failure by such Affiliate to so perform under this
agreement.
(b) Unless required by applicable law or in connection
with any mandatory regulatory or other filings, neither such
Stockholder 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 Merger Sub,
including this Agreement and the Merger Agreement and the
transactions contemplated hereby and thereby, without the prior
consent of Parent.
Section 2.5 No Appraisal. Each Stockholder agrees not to
make a written demand for appraisal in respect of the Subject
Shares in accordance with Section 262 of the Delaware General
Corporation Law in connection with the Merger.
ARTICLE III
GRANT OF OPTION TO PURCHASE SUBJECT SHARES
Section 3.1 Grant of Option
(a) Each Stockholder hereby grants to Parent an
irrevocable option (the "Option") to purchase all , but not less
than all, of the Subject Shares at a price per share equal to
Twenty-Six Dollars ($26.00). The Option may be exercised at any
time on or prior to the date (the "Option Expiration Date") that
is 10 business days after the date of the termination of the
Merger Agreement if the Merger Agreement has been terminated in
accordance with Section 8.1(g) thereof.
(b) In the event that Parent wishes to exercise the
Option, Parent shall send a written notice to the Stockholders
identifying the place and date (not less than two nor more than
ten business days from the date of the notice) of the closing of
such purchase (the "Option Closing"). At the Option Closing,
Parent shall deliver to the Stockholders, in immediately
available funds, the aggregate exercise price due for the
Subject Shares against delivery of the Subject Shares to Parent.
(c) If transfer of the Subject Shares upon exercise of the
Option (i) requires any governmental or other approval and such
approval has not been obtained, and (ii) either (A) a third
party has commenced a tender offer or exchange offer that, if
consummated, would result in any third party beneficially owning
10% or more of any class of equity securities of the Company or
any of its subsidiaries and fewer than five (5) business days
remain before expiration of the tender offer period or (B) the
stockholders of the Company have approved a merger,
consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the
Company, then Parent may elect (in its sole discretion) to have
the Stockholders tender their Subject Shares and receive the
consideration therefor or, in the event of a merger,
consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction, take the
actions necessary to receive the consideration to which the
Stockholders Shares are entitled and have the Stockholders hold
the proceeds in trust to be delivered to Parent upon payment of
the aggregate Option exercise price to the Stockholders;
provided, however, that Parent, in making such election, may
require (in which case the Stockholders shall take all
reasonable steps to ensure) that payment with respect to the
Subject Shares (the "Share Payment") is made to Parent, and in
such event Parent shall pay, by wire transfer of immediately
available funds to the Stockholders, the aggregate exercise
price within three (3) business days after Parent's receipt of
the Share Payment.
(d) As consideration for the Option, if the Merger is
consummated or if Parent acquires one hundred percent (100%) of
the issued and outstanding Company Stock within 180 days
following Parent's exercise of the Option (in either case, a
"Company Transaction"), then Parent shall pay, or shall cause
the Company to pay, to Bear Xxxxxxx in consideration of
investment banking services provided to Stockholders an
aggregate amount equal to seventy-five percent (75%) of the
amount, if any, by which the sum of US$1,550,000 (the "Maximum
Transaction Costs") exceeds the Total Post-November Transaction
Costs (as hereinafter defined). As used herein, the term "Total
Post-November Transaction Costs" shall mean (i) the amount of
the Post-November Transaction Costs (as such term is defined in
the Merger Agreement) plus (ii) any other costs or expenses
incurred by the Company after the closing of a Company
Transaction in connection with such Company Transaction. If a
Company Transaction does not occur or if the Total Post-November
Transaction Costs exceed the Maximum Transaction Costs, then
neither Parent nor any of its Affiliates shall be required to
make any payment to the Stockholders in consideration for the
Option.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF THE STOCKHOLDERS
Each Stockholder represents, warrants and covenants to Parent
that:
Section 4.1 Ownership. Such Stockholder is the Beneficial
Owner of the Subject Shares identified on Schedule A hereto and
such shares constitute all of the capital stock of the Company
Beneficially Owned by such Stockholder. Such Stockholder has
good, valid and marketable title to all of such shares, free and
clear of all Encumbrances, liens, claims, options, proxies,
voting agreements and security interests and has the sole right
to vote and dispose of such Subject Shares and there are no
restrictions on rights of disposition or other Encumbrances
pertaining to such Subject Shares, in each case except as
described on Schedule A. 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 4.2 Authority and Non-Contravention.
(a) If such Stockholder is not a natural person, such
Stockholder is duly organized, validly existing and, to the
extent applicable under applicable law, 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 such Stockholder and
constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder 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. Such Stockholder
has all necessary power, authority and legal capacity to execute
and deliver this Agreement and to perform its obligations under
this Agreement and no other corporate or similar proceedings or
actions on the part of such Stockholder are necessary to
authorize the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated
hereby. If such Stockholder is a corporation, limited liability
company or partnership, such actions have been duly authorized
and approved by all necessary corporate, limited liability
company or partnership action, as the case may be, of such
Stockholder.
(c) Such Stockholder 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 Section 13 or
Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules promulgated thereunder.
(d) Neither the execution and delivery of this Agreement
by such Stockholder nor the consummation of the transactions
contemplated hereby does or will (whether with notice or lapse
of time or both) (i) in the event such Stockholder is a
corporation, limited liability company or partnership, conflict
with, result in any violation of or require any consent under
any provision of the governing documents of such Stockholder,
(ii) conflict with, result in any violation of, require any
consent under or constitute a default by such Stockholder under
any mortgage, bond, indenture, agreement, instrument or
obligation to which such Stockholder is a party or by which it
or any of such Stockholder's assets (including the Subject
Shares) are bound, or violate any Permit of any Governmental
Entity, or any law or order to which such Stockholder, or any of
its assets (including the Subject Shares), may be subject, or
(iii) result in the imposition or creation of any Encumbrance
upon or with respect to any of the assets owned by such
Stockholder (including the Subject Shares).
Section 4.3 Total Shares. Except as set forth on Schedule
A hereto, such Stockholder, 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 4.4 Reliance. Such Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement
in reliance upon such Stockholder's execution, delivery and
performance of this Agreement.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARENT
Section 5.1 Authority. Parent represents, warrants and
covenants to the Stockholders that, assuming due authorization,
execution and delivery of this Agreement by the Stockholders,
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 Management
Committee 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.
Section 5.2 No Violation. Neither the execution and
delivery by Parent or Merger Sub of this Agreement or the Merger
Agreement nor the consummation by Parent or Merger Sub of the
transactions contemplated hereby or thereby does or will (a)
violate, conflict with or result in any breach of any provision
of the certificate of formation or operating agreement of
Parent, or the certificates of incorporation or bylaws of Merger
Sub; or (b) violate, conflict with, result in a breach of any
provision of, constitute a default (or an event that, with
notice or lapse of time or both, would constitute a default)
under, result in the termination, cancellation or amendment or
in a right of termination, cancellation or amendment of,
accelerate the performance required by or benefit obtainable
under, result in the triggering of any payment or other
obligations pursuant to, result in the creation or imposition of
any Encumbrance upon any of the properties of Parent or Merger
Sub.
Section5.3. Investment Intent. Any Shares to be acquired
upon exercise of the Option will be acquired by Parent for its
own account and not with a view to the public distribution
thereof and will not be transferred except in compliance with
the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
ARTICLE V
GENERAL PROVISIONS
Section 6.1 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 the Stockholders, 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 the Stockholders in
the voting of any of the Subject Shares, except as otherwise
expressly provided herein or in the Merger Agreement.
Section 6.2 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:
Imperial Parking Management, LLC
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
With a copy (which will not constitute notice) to:
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx
(b) If to a Stockholder, to such Stockholder's address set
forth on Schedule A hereto.
With a copy (which will not constitute notice) to:
Xxxxxxxx & Xxxxx LLP
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxx
or to 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 6.3 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, in each instance, as the requesting party may
reasonably require to more effectively carry out the intent of
the specific provisions of this Agreement. Parent shall pay all
of Stockholders' expenses in connection with this Section 6.3.
Section 6.4 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 may not be amended, supplemented or
otherwise modified except in a written document executed by the
party against whose interest the modification will operate.
Section 6.5 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.
Section 6.6 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 6.7 No Third-Party Rights. A Stockholder 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 the
Stockholders without the prior written consent of the
Stockholders. This Agreement will apply to, be binding in all
respects upon, and inure to the benefit of each of their
respective successors, personal or legal representatives, heirs,
distributes, devisees, legatees, executors, administrators and
permitted assigns of the Stockholders 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.
Section 6.8 Enforcement of Agreement. Each Stockholder
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 such Stockholder could not be adequately
compensated by monetary damages. Accordingly, each Stockholder
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 6.9 Waiver, Etc. 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 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. Notwithstanding
anything in this Agreement or the Merger Agreement, if the
Option is exercised, neither Parent nor any of its Affiliates
shall have any claim whatsoever arising out of or in connection
with this Agreement or the Merger Agreement against any of the
Stockholders or any of their Affiliates (other than the
Company), and any and all such claims will be irrevocably waived
upon exercise of the Option. The parties agree that the
contingent release and waiver contained in the preceding
sentence shall not apply to the right of Parent or any of its
Affiliates to receive the Termination Fee or Expense
Reimbursement, if applicable, pursuant to the terms of the
Merger Agreement.
Section 6.10 Governing Law. This Agreement will be
governed by and construed under the laws of the State of
Delaware applicable to contracts made and to be performed
entirely in such State.
Section 6.11 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 6.12 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 6.13 Termination. This Agreement shall terminate
upon the earlier to occur of (a) the Effective Time (as defined
in the Merger Agreement), or (b) the Option Expiration Date.
Section 6.14 Expenses. Except (a) as otherwise provided
in this Agreement and (b) for up to $10,000 of the fees and
expenses of the Stockholders' legal counsel in connection with
this Agreement (which amount shall be paid by Parent to such
legal counsel promptly after being rendered an invoice
therefor), 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 6.15 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, then the period shall end on the next day
which is a business day.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
IMPERIAL PARKING MANAGEMENT, LLC
By: s/___________________________
Its:___________________________
STOCKHOLDERS:
GOTHAM PARTNERS, L.P.
By: Section H Partners, L.P.
its General Partner
By: Karenina Corporation,
a general partner of
Section H Partners, L.P.
By: s/
Xxxxxxx X. Xxxxxx
President
GOTHAM PARTNERS, III L.P.
By: Section H Partners, L.P.
its General Partner
By: Karenina Corporation,
a general partner of
Section H Partners, L.P.
By: s/
Xxxxxxx X. Xxxxxx
President
GOTHAM INTERNATIONAL
ADVISORS, L.L.C.
By: s/
Xxxxxxx X. Xxxxxx
Senior Managing Member
GOTHAM HOLDINGS
MANAGEMENT, L.L.C.
By: s/
Xxxxxxx X. Xxxxxx
Managing Member
{;6} 18
{;6}
