This excerpt taken from the LUX 6-K filed Jun 25, 2007.
(a) The Shareholder hereby represents, warrants and covenants to Parent and Purchaser as follows:
(i) Ownership. As of the date of this Agreement, except as otherwise set forth in Part A of Schedule 1, the Shareholder is the record and Beneficial Owner of the number of issued and outstanding Shares set forth on Part A of Schedule I hereto and the stock options set forth on Part B of Schedule I hereto. As of the date of this Agreement, the Shares set forth on Part A of Schedule I hereto constitute all of the issued and outstanding Shares owned of record or
Beneficially Owned by the Shareholder. The Shareholder has the sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Shares set forth on Part A of Schedule I hereto, with no material limitations, qualifications or restrictions on such rights (including community property rights or interests of other Persons), subject to applicable securities laws and the terms of this Agreement.
(ii) Power; Binding Agreement. The Shareholder has the legal capacity, power and authority to enter into and perform all of the Shareholders obligations under this Agreement. This Agreement has been duly and validly executed and delivered by the Shareholder and, assuming due and valid execution and delivery of Parent and Purchaser, constitutes a valid and binding agreement of the Shareholder, enforceable against the Shareholder in accordance with its terms (except as such enforceability may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in law or at equity) and except that the remedy of specific performance and other forms of equitable relief are subject to the discretion of the government entity before which any enforcement proceeding therefor may be brought). Except as may otherwise be set forth in Part A to Schedule I, there is no beneficiary or holder of a voting trust certificate or other interest of any trust of which the Shareholder is trustee whose consent is required for the execution and delivery of this Agreement or the performance by the Shareholder of his obligations hereunder.
(iii) No Conflicts. As of the date of this Agreement, except as may otherwise be set forth in Part A to Schedule I, the Shareholder is not a party to any voting agreement with respect to the Shares or any other agreement that would materially restrict the Shareholders ability to perform his obligations hereunder. As of the date of this Agreement, except for filings under the Exchange Act, if applicable, to the knowledge of the Shareholder, no filing with, and no permit, authorization, consent or approval of, any state or Federal public body or authority is necessary for the execution of this Agreement by the Shareholder and the performance by the Shareholder of his obligations hereunder, except where the failure to obtain such consent, permit, authorization, approval or filing would not materially interfere with the Shareholders ability to perform his obligations hereunder, and none of the execution and delivery of this Agreement by the Shareholder, the consummation by the Shareholder of the transactions contemplated hereby or compliance by the Shareholder with any of the provisions hereof shall (A) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement or other instrument or obligation of any kind to which the Shareholder is a party or by which the Shareholder or any of his properties or assets may be bound or (B) violate any order, writ, injunction, decree, judgment, order, statute, proceeding,
rule or regulation applicable to the Shareholder or any of the Shares, in each such case in clause (A) or (B) except to the extent that any conflict, breach, default or violation would not materially interfere with the ability of the Shareholder to perform his obligations hereunder.
(iv) No Encumbrances. Except as required by Section 2, at all times during the term hereof, all of the Shares will be held by the Shareholder, or by a nominee or custodian for the direct or indirect benefit of the Shareholder, or by a family member or Affiliate of the Shareholder (subject to the conditions set forth in clause (vi) below), free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever, except for any liens, claims, understandings or arrangements that do not limit or impair the Shareholders ability to perform his obligations under this Agreement.
(v) Restriction on Transfer, Proxies and Non-Interference. Except as otherwise contemplated by the Merger Agreement or this Agreement or as required by court order, from and after the date of this Agreement and ending on the Termination Date, the Shareholder shall not, directly or indirectly, without the consent of Parent and Purchaser in respect of any Acquisition Proposal or otherwise: (A) offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other disposition, (including, without limitation, any Constructive Disposition, as defined below) of (each, a Transfer), any or all of the Shares, or any interest therein, except for the exercise of any stock options, (B) grant any proxies or powers of attorney, deposit any Shares into a voting trust or enter into a voting agreement with respect to any Shares or (C) enter into any agreement or arrangement providing for any of the actions described in clause (A) or (B) above; provided, however, the Shareholder may, without the consent of Parent and Purchaser, Transfer his Shares to members of his family and/or Affiliates; provided further, however, that any such transferee shall have delivered to Parent and Purchaser, not later than concurrently with any such Transfer, a written instrument, in form and substance reasonably satisfactory to Parent and Purchaser, to the effect that such transferee agrees to be bound by the terms of this Agreement, whereupon such transferee shall be deemed to be a Shareholder for all purposes of this Agreement. As used herein, the term Constructive Disposition means, with respect to any Shareholders Shares, a short sale with respect to such security, entering into or acquiring an offsetting derivative contract with respect to such security, entering into or acquiring a futures or forward contract to deliver such security or entering into any other hedging or other derivative transaction that has the effect of materially changing the economic benefits and risks of ownership. Any attempted transfer of the Shareholders Shares or any interest therein in violation of this Section 3(a)(v) shall be null and void. In furtherance of this Agreement, such Shareholder shall and hereby does authorize the Company and counsel to Parent and Purchaser to notify the Companys transfer agent that there is a stop transfer restriction with
respect to all of the Shareholders Shares (and that this Agreement places limits on the voting and transfer of the Shareholders Shares); provided, however, that any such stop transfer restriction shall terminate upon the termination of this Agreement in accordance with its terms and, upon such event, Parent shall notify the Companys transfer agent of such termination.
(vi) No Solicitation. Prior to the Termination Date, subject to Section 5, the Shareholder shall, and shall use commercially reasonable efforts to cause his employees, investment bankers, financial advisors, attorneys, accountants, agents and other representatives (collectively, the Representatives) to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal, other than the Merger. Prior to the Termination Date, subject to Section 5, the Shareholder shall not, and shall use commercially reasonable efforts to cause his Representatives not to, directly or indirectly, (i) solicit, initiate, or knowingly encourage (including by way of furnishing non-public information) the making of any proposal or offer concerning any Acquisition Proposal, other than the Merger, (ii) engage in any discussions or negotiations with any third party concerning any Acquisition Proposal, other than the Merger, (iii) approve, endorse or recommend any Acquisition Proposal, other than the Merger or (iv) enter into any letter of intent or similar agreement or any Contract contemplated by or otherwise related to any Acquisition Proposal, other than the Merger. If the Shareholder receives an unsolicited proposal or offer concerning an Acquisition Proposal, he will notify the Company of such proposal or offer so that the Company may comply with its obligations under the Merger Agreement. Notwithstanding the foregoing, the Shareholder is permitted to take any actions otherwise prohibited by this paragraph if such action is related to an Acquisition Proposal and if, and only during such time as and to the extent that, the Company is then permitted under the Merger Agreement to engage in discussions or negotiations with such Person or group of related Persons that has made the Acquisition Proposal, and provided that the Company is in compliance with Section 5.07 of the Merger Agreement.