Additional Agreements. (a) Subject to Section 5.10(b), Parent and the Company shall use all reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period. (b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 4 contracts
Sources: Merger Agreement (Lipson David S), Merger Agreement (Integrated Systems Consulting Group Inc), Merger Agreement (Safeguard Scientifics Inc Et Al)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4 and the Joint Proxy Statement; Stockholders' Meetings.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, Parent Phone and ▇▇▇▇▇▇▇▇.▇▇▇ shall prepare and file with the Company SEC the Joint Proxy Statement, and Phone shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Phone and ▇▇▇▇▇▇▇▇.▇▇▇ shall use all commercially reasonable efforts to take, or have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Phone will use commercially reasonable efforts to cause the Joint Proxy Statement to be takenmailed to Phone's stockholders, all actions necessary and ▇▇▇▇▇▇▇▇.▇▇▇ will use commercially reasonable efforts to consummate cause the Joint Proxy Statement to be mailed to ▇▇▇▇▇▇▇▇.▇▇▇'s stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Phone shall also take any action required to be taken under any applicable state securities laws in connection with the issuance of shares of Phone Common Stock in the Merger and make effective the other transactions contemplated conversion of ▇▇▇▇▇▇▇▇.▇▇▇ Options into options to acquire Phone Common Stock, and ▇▇▇▇▇▇▇▇.▇▇▇ shall furnish all information concerning ▇▇▇▇▇▇▇▇.▇▇▇ and the holders of ▇▇▇▇▇▇▇▇.▇▇▇ Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 or the Joint Proxy Statement will be made by this AgreementPhone without ▇▇▇▇▇▇▇▇.▇▇▇'s prior consent and without providing ▇▇▇▇▇▇▇▇.▇▇▇ the opportunity to review and comment thereon. Without limiting the generality Phone will advise ▇▇▇▇▇▇▇▇.▇▇▇ promptly after it receives notice thereof, of the foregoingtime when the Form S-4 has become effective or any supplement or amendment has been filed, but subject to Section 5.10(b)the issuance of any stop order, each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party the suspension of the qualification of the Phone Common Stock issuable in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to for offering or sale in any applicable Legal Requirement or Contractjurisdiction, or otherwise) any request by such party in connection with the Merger SEC for amendment of the Joint Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to Phone or ▇▇▇▇▇▇▇▇.▇▇▇, or any of their respective affiliates, officers or directors, should be discovered by Phone or ▇▇▇▇▇▇▇▇.▇▇▇ which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other transactions contemplated by this Agreementparties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver extent required by law, disseminated to Parent a copy the stockholders of each such filing made, each such notice given Phone and each such Consent obtained by the Company during the Pre-Closing Period▇▇▇▇▇▇▇▇.▇▇▇.
(b) Notwithstanding anything Phone shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly give notice of, convene and hold a meeting of its stockholders (the "Phone Stockholders' Meeting") in accordance with the DGCL for the purpose of obtaining the Phone Stockholder Approval and shall, subject to the contrary contained in this Agreementprovisions of Section 4.2(b) hereof, Parent shall not have any obligation under this Agreement: (i) through its Board of Directors, recommend to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any stockholders the approval of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any issuance of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any shares of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of Phone Common Stock in the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after Merger and the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsPhone Charter Amendment.
Appears in 4 contracts
Sources: Merger Agreement (Software Com Inc), Merger Agreement (Phone Com Inc), Merger Agreement (Phone Com Inc)
Additional Agreements. SECTION 5.01 Conduct of Business Prior to the Closing.
(a) Subject to Parent and Rodeo, Inc. covenant and agree that, between the date of this Agreement and the time of the Closing, except as set forth in Section 5.10(b)5.01 of the Disclosure Letter or as contemplated by any other provision of this Agreement, Parent unless the Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed:
(i) the businesses of the Company and the Company Subsidiaries shall be conducted only in, and the Company and the Company Subsidiaries shall not take any action except in, the ordinary course of business;
(ii) the Company and the Company Subsidiaries shall use all reasonable best efforts to takepreserve substantially intact their business organization, or cause to be taken, all actions necessary to consummate keep available the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality services of the foregoingcurrent employees of Rodeo, but subject Inc. and to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with preserve the Merger current relationships of the Company and the Company Subsidiaries with customers, contractholders and other transactions Persons with whom the Company or any Company Subsidiary has significant business relations;
(iii) the Company and the Company Subsidiaries shall comply in all material respects with their respective obligations under all material contracts binding upon them as such obligations become due and with their respective obligations under applicable Law; and
(iv) the Company and the Company Subsidiaries shall use their reasonable best efforts to continue in force with good and responsible insurance companies adequate insurance covering risks of such types and in such amounts as are consistent with past practice.
(b) By way of amplification and not limitation, except as contemplated by this Agreement, or as reflected in the Company SEC Reports filed prior to the date hereof or Section 5.01 of the Disclosure Letter, Parent and Rodeo, Inc. covenant and agree that neither the Company nor any Company Subsidiary shall, between the date of this Agreement and the Closing, directly or indirectly do, or propose to do, any of the following, without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed:
(i) amend, propose to amend, or otherwise change its Certificate of Limited Partnership or the Company Partnership Agreement or similar organizational documents;
(ii) shall use issue, sell, transfer, pledge, dispose of, grant, encumber, amend the terms of, or authorize the issuance, sale, pledge, disposition, grant or Encumbrance of any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including without limitation general and limited partnership interests) of the Company or any Company Subsidiary of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests (including, without limitation, any phantom interest, general partnership interest or limited partnership interest) of the Company or any Company Subsidiary, other than as permitted under clause (ix) of Section 5.01(b);
(iii) declare, set aside, make or pay any dividend or other distribution payable in cash, stock, property or otherwise, with respect to any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests, except for (A) dividends and other distributions by direct or indirect wholly-owned Company Subsidiaries and (B) distributions pursuant to the terms of the Company Partnership Agreement;
(iv) other than in the case of any direct or indirect wholly-owned Company Subsidiary, combine, split or subdivide, directly or indirectly, any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or reclassify any of the Units, the Incentive Distribution Rights, the GP Interest or any other ownership interests or issue or authorize the issuance of any other Units or any other ownership interests of the Company or any Company Subsidiary in respect of, in lieu of, or in substitution of the Units, the Incentive Distribution Rights, the GP Interest or other ownership interests;
(v) redeem, purchase or otherwise acquire, directly or indirectly, any Units, Incentive Distribution Rights or any other ownership interests of the Company or any Company Subsidiary or rights, warrants or options to acquire any Units, Incentive Distribution Rights or other ownership interests;
(vi) acquire or agree to acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership, other business organization or any division thereof or any assets, except for transactions not exceeding $15,000,000 individually or $30,000,000 in the aggregate for all reasonable efforts transactions pursuant to obtain each Consent this subsection (if anyvi);
(vii) except for Permitted Encumbrances or as required by any Material Contract, lease, license, mortgage or otherwise encumber or subject to any Encumbrance, or agree to encumber or subject to any Encumbrance, any of its assets or properties, other than transactions that are in the ordinary course of business and not material to the Company and the Company Subsidiaries taken as a whole;
(viii) except as required by any Material Contract or in the ordinary course of business, sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its assets or properties, other than transactions not exceeding $25,000,000 individually or $50,000,000 in the aggregate for all transactions pursuant to this subsection (viii);
(ix) incur any Indebtedness, other than as permitted by the terms of the Credit Agreements;
(x) enter, to a material extent, any line of business that is not (i) currently conducted, (ii) currently contemplated to be obtained conducted by the Company or (pursuant iii) ancillary to any applicable Legal Requirement or Contractthe Company's current business, or commence business operations in any country outside the United States or Canada;
(xi) increase the compensation payable or to become payable to the Company's, any Company Subsidiary's, or Seller's officers or employees, except in the ordinary course of business, or grant any severance or termination pay to, or modify or enter into any employment or severance agreement with, any director, officer, employee or former employee of the Company, Seller or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, unit option, restricted unit, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee except as required by law;
(xii) change any method of accounting or accounting practice by the Company or any Company Subsidiary, except for any such change required by U.S. GAAP;
(xiii) pay, discharge or satisfy any material claim, litigation, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities reflected or reserved against in the Reference Balance Sheet or subsequently incurred in the ordinary course of business or in accordance with the provisions of this Section 5.01;
(xiv) by such party settle or compromise any material Audit, make or change any material Tax election or file any material amended Tax return;
(xv) take any action that would give rise to a claim under the WARN Act or any similar state law or regulation because of a "plant closing" or "mass layoff" (each as defined in the WARN Act);
(xvi) enter into, amend, modify or supplement any Material Contracts in any material respect;
(xvii) enter into any contract, agreement or other arrangement that involves annual payments to or from the Company or its Subsidiaries in excess of $25,000,000 singly or $50,000,000 in the aggregate, other than in the ordinary course of business or in connection with the Merger transactions described in clause (vi) above;
(xviii) except as provided in this Agreement, enter into, amend, terminate or waive any provision of, any agreement or arrangement, or enter into any transaction, between the Company and/or any Company Subsidiary, on the one hand, and any of their respective officers, directors, unitholders, owners or Affiliates, on the other hand, which if entered into prior to the date hereof would be required to be disclosed pursuant to Section 3.20;
(xix) materially alter (through merger, liquidation, reorganization, restructuring, conversion or in any other fashion) the corporate structure or ownership of the Company or any of the Company Subsidiary other transactions than as contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.; or
(bxx) Notwithstanding anything enter into any contract, agreement, commitment or arrangement to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause do any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationsforegoing.
Appears in 4 contracts
Sources: Unit Transfer and Contribution Agreement (Plains Resources Inc), Unit Transfer and Contribution Agreement (Plains Resources Inc), Unit Transfer and Contribution Agreement (Plains Resources Inc)
Additional Agreements. (a) Subject to Section 5.10(b5.6(b), Parent and the Company shall use all reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b5.6(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.or
Appears in 4 contracts
Sources: Agreement and Plan of Merger and Reorganization (Arris Pharmaceutical Corp/De/), Merger Agreement (Sequana Therapeutics Inc), Merger Agreement (Sequana Therapeutics Inc)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement; Stockholders Meeting.
(a) Subject to Section 5.10(b)As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to takehave the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or cause with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be takendescribed in an amendment of, all actions necessary or a supplement, to consummate the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and make other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated by this Agreementhereby (the "Company Recommendation"). Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to the first sentence of this Section 5.10(b)5.1(d) shall not be affected by the commencement, each party public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement (i) and the Merger shall make all filings (if any) be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and give all notices (if any) required to be made and given by such party in connection with the Merger and nothing contained herein shall be deemed to relieve the other transactions contemplated by this Agreement, Company of such obligation.
(iie) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver coordinate and cooperate with Parent with respect to Parent a copy the timing of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing PeriodStockholders Meeting.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 4 contracts
Sources: Merger Agreement (Mafco Holdings Inc), Agreement and Plan of Merger (Golden State Bancorp Inc), Merger Agreement (Ford Gerald J)
Additional Agreements. SECTION 6.01. Preparation of the Form S-4 and the Proxy Statement; Stockholders Meetings.
(a) Subject As soon as practicable following the date of this Agreement, the Company shall prepare and file with the SEC the Proxy Statement in preliminary form and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus, and each of the Company and Parent shall use its reasonable efforts to Section 5.10(b)respond as promptly as practicable to any comments of the SEC with respect thereto. The Company and Parent shall each give the other party an opportunity to review, comment on and make reasonable changes to the Proxy Statement and the Form S-4, respectively. Each of the Company and Parent shall use its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any reasonable action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Stock Plans and the Company shall use furnish all reasonable efforts to take, or cause to be taken, all actions necessary to consummate information concerning the Merger Company and make effective the other transactions contemplated by this Agreement. Without limiting the generality holders of the foregoing, but subject Company Common Stock and rights to Section 5.10(b), each party acquire Company Common Stock pursuant to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to the Company Stock Plans as may be made and given by such party reasonably requested in connection with any such action. The parties shall notify each other promptly of the Merger receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other transactions contemplated by this Agreement, (ii) shall use with copies of all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by correspondence between such party in connection with the Merger or any of its representatives, on the one hand, and the SEC or its staff, on the other transactions contemplated by this Agreementhand, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar with respect to the Proxy Statement, the Form S-4 or the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything If at any time prior to the contrary Effective Time any event with respect to the Company or any Company Subsidiary, or with respect to other information supplied by the Company for inclusion in the Proxy Statement or the Form S-4 shall occur which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, the Company will promptly notify Parent of such event, and the Company shall cooperate with Parent in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement and the Form S-4 and, as required by law, in disseminating the information contained in this Agreementsuch amendment or supplement to the stockholders of the Company.
(c) If at any time prior to the Effective Time any event with respect to Parent or any Parent Subsidiary, or with respect to other information supplied by the Parent for inclusion in the Proxy Statement or the Form S-4 shall occur which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, Parent will promptly notify the Company of such event, and Parent shall not have cooperate with Company in the prompt filing with the SEC of any obligation under this Agreement: necessary amendment or supplement to the Proxy Statement and the Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the stockholders of the Company.
(id) to dispose or cause any The Company shall, as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its subsidiaries stockholders (the "Company Stockholders Meeting") for the purpose of seeking the Company Stockholder Approval. The Company shall consult with Parent in determining a date for such meeting that is reasonably acceptable to dispose Parent and the Company. The Company shall, through the Company Board, recommend to its stockholders that they give the Company Stockholder Approval, except to the extent that the Company Board shall have withdrawn or modified its approval or recommendation of any assetsthis Agreement or the Merger as permitted by Section 5.02(b).
(e) The Company shall instruct Deloitte & Touche LLP, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make availableCompany's independent public accountants, to any Persondeliver to Parent a letter dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to Parent, any technologythe form and substance of which shall be negotiated between Parent and Deloitte & Touche LLP (with the intent that such letter should be customary in scope and substance for letters delivered by such accounting firm in connection with registration statements similar to the Form S-4).
(f) Parent shall instruct KPMG Peat Marwick LLP, software or other Proprietary AssetParent's independent public accountants, or to commit deliver to cause any the Company a letter dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to the Company, the form and substance of which shall be negotiated among the Acquired Corporations Company, Parent and KPMG Peat Marwick LLP (with the intent that such letter should be customary in scope and substance for letters delivered by such accounting firm in connection with registration statements similar to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing DateForm S-4), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 4 contracts
Sources: Merger Agreement (Genovese Drug Stores Inc), Merger Agreement (Penney J C Co Inc), Merger Agreement (Penney J C Co Inc)
Additional Agreements. (a) Subject to Section 5.10(b5.6(b), Parent and the Company shall use all reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b5.6(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, ; (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, ; and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this AgreementAgreement to: (i) to dispose or transfer or cause any of its subsidiaries Subsidiaries to dispose of or transfer any assets, or to commit to cause any of the Acquired Corporations Companies to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries Subsidiaries to discontinue offering any productproduct or service, or to commit to cause any of the Acquired Corporations Companies to discontinue offering any productproduct or service; (iii) to license or otherwise make available, or cause any of its subsidiaries Subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary AssetIntellectual Property, or to commit to cause any of the Acquired Corporations Companies to license or otherwise make available to any Person any technology, software or other Proprietary AssetCompany Intellectual Property; (iv) to hold separate or cause any of its subsidiaries Subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations Companies to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompanies; or (vi) contest any Legal Proceeding relating to the Merger if Parent determines in good faith that contesting such Legal Proceeding might not be advisable.
(c) During the Pre-Closing Period, the Company shall promptly notify Parent in writing of (i) any event, condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that could cause or constitute a material inaccuracy in any representation or warranty made by the Company in this Agreement if such representation or warranty had been made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance, or such event, condition, fact or circumstance had occurred, arisen or existed on or prior to the date of this Agreement; and (ii) any material breach of any covenant or obligation of the Company that, in each case of clauses (i) and (ii), could make the timely satisfaction of any condition set forth in Section 6 or Section 7 impossible or unlikely or that has had or could reasonably be expected to have a Company Material Adverse Effect. No notification given to Parent pursuant to this Section 5.6(c) shall limit or otherwise affect any of the representations, warranties, covenants or obligations of the Company contained in this Agreement.
(d) During the Pre-Closing Period, Parent shall promptly notify the Company in writing of (i) any event, condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that could cause or constitute a material inaccuracy in any representation or warranty made by Parent in this Agreement if such representation or warranty had been made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance, or such event, condition, fact or circumstance had occurred, arisen or existed on or prior to the date of this Agreement; and (ii) any material breach of any covenant or obligation of Parent that, in each case of clauses (i) and (ii), could make the timely satisfaction of any condition set forth in Section 6 or Section 7 impossible or unlikely or that has had or could reasonably be expected to have a Parent Material Adverse Effect on Parent. No notification given to the Company pursuant to this Section 5.6(d) shall limit or otherwise affect any of the representations, warranties, covenants or obligations of Parent contained in this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Hoshizaki America, Inc.), Merger Agreement (Lancer Corp /Tx/), Merger Agreement (Lancer Corp /Tx/)
Additional Agreements. Section 7.1 Schedule 13E-3.
(a) Subject to Section 5.10(b)As soon as reasonably practicable following the date hereof but in any event within twenty (20) Business Days after the date hereof, the Company, Parent and Merger Sub shall jointly prepare and cause to be filed with the SEC a Rule 13e-3 transaction statement on Schedule 13E-3 (such Schedule 13E-3, as amended or supplemented, being referred to herein as the “Schedule 13E-3”). Each of the Company, Parent and Merger Sub shall use its reasonable best efforts to ensure that the Schedule 13E-3 complies in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. Each of the Company, Parent and Merger Sub shall use its reasonable best efforts to respond promptly to any comments of the SEC with respect to the Schedule 13E-3. Each of Parent and Merger Sub shall provide reasonable assistance and cooperation to the Company in the preparation, filing, and mailing/distribution of the Schedule 13E-3 and the resolution of comments from the SEC. Upon its receipt of any comments from the staff of the SEC or any request from the SEC or its staff for amendments or supplements to the Schedule 13E-3, the Company shall use promptly notify Parent and Merger Sub, and shall provide Parent with copies of all reasonable efforts to takecorrespondence between the Company and its representatives, or cause to be takenon the one hand, all actions necessary to consummate and the Merger and make effective staff of the SEC, on the other transactions contemplated by this Agreementhand. Without limiting Prior to filing the generality Schedule 13E-3 (or any amendment or supplement thereto) or responding to any comments of the foregoingSEC with respect thereto, but subject to Section 5.10(b), each party to this Agreement the Company (i) shall make provide Parent and Merger Sub with a reasonable opportunity to review and comment on such document or response; and (ii) shall consider in good faith all filings additions, deletions or changes reasonably proposed by Parent in good faith, provided, however, that nothing in this Section 7.1 shall limit or preclude the Board or the Special Committee from effecting a Change in Company Recommendation. Notwithstanding anything herein to the contrary, and subject to compliance with the terms of Section 6.2(e), in connection with any disclosure regarding a Change in Company Recommendation, the Company shall not be required to provide Parent or Merger Sub with the opportunity to review or comment on (if anyor include comments proposed by Parent or Merger Sub in) the Schedule 13E-3 or any amendment or supplement thereto, or any comments thereon or another filing by the Company with the SEC, with respect to such disclosure.
(b) Each of the Company, Parent and give Merger Sub shall promptly furnish all notices information concerning such party to the others as may be reasonably requested in connection with the preparation, filing, and mailing/distribution of the Schedule 13E-3 or any other documents filed or to be filed with the SEC in connection with the Transactions. Each of Parent, Merger Sub and the Company agrees, as to itself and its respective Affiliates or Representatives, that none of the information supplied or to be supplied by Parent, Merger Sub or the Company, as applicable, expressly for inclusion or incorporation by reference in the Schedule 13E-3 or any other documents filed or to be filed with the SEC in connection with the Transactions, will, as of the time such documents (if anyor any amendment thereof or supplement thereto) are mailed to the shareholders of the Company, contain any untrue statement of a material fact, or omit to state a material fact required to be made therein, or necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. Each of Parent, Merger Sub and given by the Company further agrees that all documents that such party is responsible for filing with the SEC in connection with the Merger will comply as to form and substance in all material respects with the applicable requirements of the Securities Act, the Exchange Act, and any other applicable Laws and that all information supplied by such party for inclusion or incorporation by reference in such document will not contain any untrue statement of a material fact, or omit to state a material fact required to be made therein, or necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. If at any time prior to the Effective Time, any event or circumstance relating to Parent, Merger Sub or the Company, or their respective Affiliates, officers or directors, should be discovered that should be set forth in an amendment or a supplement to the Schedule 13E-3 so that such document would not include any misstatement of a material fact or omit to state a material fact required to be made therein, or necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, the party discovering such event or circumstance shall promptly inform the other transactions contemplated parties and an appropriate amendment or supplement describing such event or circumstance shall be promptly filed with the SEC and disseminated to the shareholders of the Company to the extent required by this AgreementLaw; provided that prior to such filing, the Company and Parent, as the case may be, shall consult with each other with respect to such amendment or supplement and shall afford the other party and their Representatives a reasonable opportunity to comment thereon.
(c) As soon as reasonably practicable after the SEC staff confirms that it has no further comments on the Schedule 13E-3, the Company shall (i) establish a record date for determining shareholders of the Company to whom the Schedule 13E-3 will be mailed or distributed (the “Record Date”) and shall not change such Record Date unless required to do so by applicable Law; (ii) shall use all reasonable efforts to obtain each Consent (if any) required mail or distribute or cause to be obtained (pursuant mailed or distributed the Schedule 13E-3 to any applicable Legal Requirement or Contractthe holders of Shares, or otherwise) including Shares represented by such party in connection with the Merger or any ADSs, as of the other transactions contemplated by this Agreement, Record Date; and (iii) shall use instruct the Depositary to (A) fix the Record Date as the record date for determining the holders of ADSs to whom the Schedule 13E-3 will be mailed/distributed (the “Record ADS Holders”) and (B) provide the Schedule 13E-3 to all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing PeriodRecord ADS Holders.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 3 contracts
Sources: Merger Agreement (China Index Holdings LTD), Plan of Merger, Merger Agreement
Additional Agreements. Section 6.1 Preparation of the Amendment to Joint Proxy Statement/Prospectus and Post-Effective Amendment to Form S-4.
(a) Subject On July 2, 2021, Parent filed with the SEC a registration statement on Form S-4 under the Securities Act (including a preliminary joint proxy statement/prospectus, as amended or supplemented from time to Section 5.10(btime prior to the date hereof, the “Original Joint Proxy Statement/Prospectus”) with respect to the issuance of Parent Common Stock in the Merger (such registration statement, and any amendments or supplements thereto prior to the date hereof, the “Original Form S-4”), which was declared effective by the SEC on July 23, 2021. As promptly as reasonably practicable after the execution and delivery of this Agreement, (i) the Company and Parent shall jointly prepare and cause to be filed with the SEC an amendment to the Original Joint Proxy Statement/Prospectus (as amended or supplemented from time to time, the “Amended Joint Proxy Statement/Prospectus” and, together with the Original Joint Proxy Statement/Prospectus, the “Joint Proxy Statement/Prospectus”) (x) to be mailed to the stockholders of the Company relating to the Company Stockholders Meeting and (y) to be mailed to the shareholders of Parent relating to the Parent Stockholders Meeting, and (ii) Parent shall prepare, together with the Company, and file with the SEC a post-effective amendment to the Original Form S-4 (such amendment, and any amendments or supplements thereto, the “Amended Form S-4” and, together with the Original Form S-4, the “Form S-4”). Each of Parent and the Company shall use all its reasonable best efforts to takehave the Amended Form S-4 declared effective by the SEC, or cause and to be taken, all actions keep the Amended Form S-4 effective as long as is necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated hereby. Parent shall furnish to the Company all information relating to Parent as may be reasonably requested by this Agreementthe Company in connection with any such action and the preparation, filing and mailing of the Amended Joint Proxy Statement/Prospectus and the Company shall furnish to Parent all information relating to the Company as may be reasonably requested by Parent in connection with any such action and the preparation and filing of the Amended Joint Proxy Statement/Prospectus and the Amended Form S-4. Subject to applicable Law, as promptly as reasonably practicable after the SEC or its staff advises that it has no further comments on the Amended Joint Proxy Statement/Prospectus and the Amended Form S-4 or that the Company and Parent may commence mailing the Amended Joint Proxy Statement/Prospectus, each of the Company and Parent shall use its reasonable best efforts to cause the Amended Joint Proxy Statement/Prospectus to be distributed to the stockholders of the Company and the shareholders of Parent (as applicable). No filing of, or amendment or supplement to the Amended Joint Proxy Statement/Prospectus or the Amended Form S-4, as applicable, shall be made by the Company or Parent, as applicable, and no response to any comments of the SEC or its staff with respect thereto shall be submitted by the Company or Parent, as applicable, without providing the other party a reasonable opportunity to review and comment thereon and giving due consideration to inclusion in the Amended Joint Proxy Statement/Prospectus or Amended Form S-4, as applicable, or any such response, comments reasonably proposed by either party. Both parties shall notify the other party promptly of the receipt of any comments from the staff of the SEC with respect to the Amended Joint Proxy Statement/Prospectus or the Amended Form S-4, as applicable, and of any request by the staff of the SEC for amendments or supplements to the Amended Joint Proxy Statement/Prospectus or Amended Form S-4, as applicable, or for additional information. The Company or Parent, as applicable, shall respond promptly to any comments or requests from the staff of the SEC and shall supply the other party with copies of all correspondence between such party or any of its Representatives, on the one hand, and the staff of the SEC, on the other hand, with respect to the Amended Joint Proxy Statement/Prospectus or the Amended Form S-4.
(b) None of the information supplied or to be supplied by the Company or Parent for inclusion or incorporation by reference into (i) the Form S-4 will, at the time the Form S-4 is filed with the SEC or at the time it becomes effective under the Securities Act, contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (ii) shall use all reasonable efforts the Joint Proxy Statement/Prospectus will, at the date of distribution to obtain each Consent (if any) stockholders of the Company, at the time of the Company Stockholders Meeting to be held in connection with the Merger, at the date of distribution to shareholders of Parent and at the time of the Parent Stockholders Meeting to be held in connection with the Issuance, contain any untrue statement of material fact or omit to state any material fact required to be obtained stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; providing, that, in each case of (pursuant i) and (ii), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein. If at any time prior to obtaining the Requisite Company Stockholder Vote or the Requisite Parent Stockholder Vote any applicable Legal Requirement information relating to the Company or ContractParent, or otherwiseany of their respective Affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Joint Proxy Statement/Prospectus or Form S-4, as applicable, so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, distributed to the stockholders of the Company and to the shareholders of Parent.
(c) Each of the Company and Parent shall cause the Joint Proxy Statement/Prospectus and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by such either party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/Prospectus or Form S-4. Parent and the Company shall make any other necessary filings with respect to the Merger under the Securities Act and Exchange Act and the rules and regulations thereunder.
(d) Each party will advise the other party promptly after it receives notice thereof, of the time when the Form S-4 becomes effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations Joint Proxy Statement/Prospectus or the future operations of any of the Acquired CorporationsForm S-4.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Equity Commonwealth)
Additional Agreements. Section 6.01 Preparation of the Form S-4 and the Joint Proxy Statement/Prospectus; Stockholders Meeting.
(a) Subject As soon as practicable following the date of this Agreement, but in any event within twenty (20) Business Days following the date of this Agreement (to Section 5.10(bthe extent practicable), Parent and the Company shall jointly prepare and cause to be filed with the SEC the Joint Proxy Statement/Prospectus in preliminary form and Parent shall prepare (with the cooperation of the Company) and file with the SEC the Form S-4, in which the Joint Proxy Statement/Prospectus will be included as a prospectus, and each of the Company and Parent shall cooperate with each other and use reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto; provided, that consistent with the foregoing, Parent and the Company shall use their good faith efforts to make the initial filing of the Form S-4 within ten (10) Business Days following the date of this Agreement, it being understood and agreed that the failure to make such filing within such ten (10) Business Day period shall not be deemed to be a breach of this Agreement for any purpose. Each of the Company and Parent shall cooperate with each other and use reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of the Company and Parent shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be mailed to the Company’s stockholders and the Parent’s stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Plans and the Company shall furnish all information concerning the Company and the holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Joint Proxy Statement/Prospectus or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such party or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Joint Proxy Statement/Prospectus, the Form S-4 or the Merger. Each party shall give each other party an opportunity to participate in any discussions or meetings such party has with the SEC in connection with the Joint Proxy Statement/Prospectus, the Form S-4 or the Merger. Notwithstanding the foregoing, before filing the Form S-4 (or any amendment or supplement thereto) or mailing the Joint Proxy Statement/Prospectus (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each of Parent and the Company (i) shall provide the other a reasonable opportunity to review and comment on such document or response (including the proposed final version of such document or response), (ii) shall include in such document or response all comments reasonably proposed by the other and (iii) shall not file or mail such document or respond to the SEC prior to receiving the approval of the other (such approval not to be unreasonably withheld, conditioned or delayed). Each of Parent and the Company shall advise the other, promptly after receipt of notice thereof, of the time of effectiveness of the Form S-4, the issuance of any stop order relating thereto or the suspension of the qualification of the Parent Common Stock included in the Merger Consideration for offering or sale in any jurisdiction, and each of Parent and the Company shall use all reasonable efforts to takehave any such stop order or suspension lifted, reversed or cause otherwise terminated. Each of Parent and the Company shall also take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be takentaken under the Securities Act, all actions necessary to consummate the Exchange Act, any applicable foreign or state securities or “blue sky” laws and the rules and regulations thereunder in connection with the Merger and make the Share Issuance.
(b) If before the Effective Time, any event occurs with respect to the Company, or any change occurs with respect to other information supplied by the Company for inclusion in the Joint Proxy Statement/Prospectus or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement/Prospectus or the Form S-4, the Company shall promptly notify Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement/Prospectus and Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the Company’s stockholders.
(c) If before the Effective Time, any event occurs with respect to Parent or any Parent Subsidiary, or change occurs with respect to other information supplied by Parent for inclusion in the Joint Proxy Statement/Prospectus or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement/Prospectus or the Form S-4, Parent shall promptly notify the Company of such event, and Parent and the Company shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 and, as required by Law, in disseminating the information contained in such amendment or supplement to the Company’s stockholders.
(d) The Company shall, as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its shareholders (including any adjournment, postponement or other delay thereof, the “Company Stockholders Meeting”) for the purpose of, among other things, seeking the Company Stockholder Approval. The Company shall use reasonable best efforts to: (x) cause the Joint Proxy Statement/Prospectus to be mailed to the Company’s shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act; (y) solicit from the holders of Company Common Stock proxies in favor of the adoption of this Agreement and approval of the Merger; and (z) take all other transactions contemplated actions necessary or advisable to secure the vote or consent of the holders of Company Common Stock required by this Agreementapplicable Law to obtain such approval. Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to the first sentence of this Section 5.10(b), each party to this Agreement 6.01(d) shall not be affected by (i) shall make all filings (if any) and give all notices (if any) required the commencement, public proposal, public disclosure or communication to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, Company of any Company Takeover Proposal or (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement the withdrawal or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained modification by the Company during Board of its approval or recommendation of this Agreement or the Pre-Closing PeriodMerger.
(be) Parent shall, as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its shareholders (including any adjournment, postponement or other delay thereof, the “Parent Stockholders Meeting”) for the purpose of, among other things, seeking from the holders of Parent Common Stock proxies in favor of the approval of the Share Issuance. Parent shall use reasonable best efforts to: (x) cause the Joint Proxy Statement/Prospectus to be mailed to Parent’s shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act; (y) solicit from the holders of Parent Common Stock proxies in favor of the Share Issuance; and (z) take all other actions necessary or advisable to secure the vote or consent of the holders of Parent Common Stock required by applicable Law to obtain such approval.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company will be permitted to postpone or adjourn the Company Stockholders Meeting if (i) there are holders of insufficient shares of the Company Common Stock present or represented by proxy at the Company Stockholders Meeting to constitute a quorum at the Company Stockholders Meeting; (ii) the Company is required to postpone or adjourn the Company Stockholders Meeting by applicable Law, order or a request from the SEC; or (iii) the Company Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law to postpone or adjourn the Company Stockholders Meeting (including, if the Company Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law) in order to give the stockholders of the Company sufficient time to evaluate any information or disclosure that the Company has sent to the stockholders of the Company or otherwise made available to the stockholders of the Company by issuing a press release, filing materials with the SEC or otherwise, in each case in accordance with the terms of this Agreement.
(g) Notwithstanding anything to the contrary in this Agreement, Parent shall not have any obligation under this Agreement: will be permitted to postpone or adjourn the Parent Stockholders Meeting if (i) to dispose or cause any there are holders of its subsidiaries to dispose of any assets, or to commit to cause any insufficient shares of the Acquired Corporations Parent Common Stock present or represented by proxy at the Parent Stockholders Meeting to dispose of any assetsconstitute a quorum at the Parent Stockholders Meeting; (ii) Parent is required to discontinue postpone or cause any of its subsidiaries to discontinue offering any productadjourn the Parent Stockholders Meeting by applicable Law, order or to commit to cause any of a request from the Acquired Corporations to discontinue offering any productSEC; or (iii) the Parent Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law to license postpone or adjourn the Parent Stockholders Meeting (including, if the Parent Board (or a committee thereof) has determined in good faith (after consultation with outside legal counsel) that it is required by applicable Law) in order to give the stockholders of Parent sufficient time to evaluate any information or disclosure that Parent has sent to the stockholders of Parent or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make made available to any Person any technologythe stockholders of Parent by issuing a press release, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after filing materials with the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body SEC or otherwise) regarding its future operations or , in each case in accordance with the future operations terms of any of the Acquired Corporationsthis Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Applied Molecular Transport Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.)
Additional Agreements. SECTION 5.01. Preparation of the Form S-4 and the Joint Proxy Statement. As soon as practicable following the date of this Agreement, the Company and Parent shall prepare and file with the SEC the Joint Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use its commercially reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and to keep the Form S-4 effective for so long as necessary to complete the Merger. The Company will use its commercially reasonable efforts to cause the Joint Proxy Statement to be mailed to the Company's stockholders and Parent will use its commercially reasonable efforts to cause the Joint Proxy Statement to be mailed to Parent's shareholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (aother than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) Subject reasonably required to Section 5.10(b)be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger, Parent and the Company shall use furnish all reasonable efforts to takeinformation concerning the Company and the holders of Company Common Stock as may be reasonably requested by Parent in connection with any such action and the preparation, filing and distribution of the Joint Proxy Statement and the Form S-4. No filing of, or cause amendment or supplement to, the Form S-4 will be made by Parent, and no filing, or amendment or supplement to, the Joint Proxy Statement will be made by Parent or the Company, in each case without providing the other party a reasonable opportunity to be takenreview and comment thereon. The parties shall notify each other promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Joint Proxy Statement or the Form S-4 or for additional information, and shall supply each other with copies of all actions necessary correspondence between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to consummate the Joint Proxy Statement, the Form S-4, the Merger and make effective or the other transactions contemplated by this Agreement or the Voting Agreement. Without limiting If at any time prior to the generality of Effective Time any information relating to the foregoingCompany or Parent, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreementtheir respective Affiliates, and (iii) shall use all reasonable efforts to lift any restraintdirectors or officers, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained should be discovered by the Company during or Parent which should be set forth in an amendment or supplement to either of the Pre-Closing Period.
(b) Notwithstanding anything Form S-4 or the Joint Proxy Statement, so that either of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the contrary contained in this Agreementextent required by law, disseminated to the shareholders of Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any and the stockholders of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompany.
Appears in 3 contracts
Sources: Merger Agreement (Olin Corp), Merger Agreement (Citigroup Inc), Merger Agreement (Chase Industries Inc)
Additional Agreements. (a) Subject to Section 5.10(b), Parent and the Company shall use all reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall The Executive represents that he or she has not, and agrees that he or she will not, in any way disparage the Company or its current and former officers, directors and employees, or make all filings (if any) and give all notices (if any) required or solicit any comments, statements, or the like to the media or to others that may be considered to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement derogatory or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar detrimental to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose good name or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations business reputation of any of the Acquired Corporationsaforementioned parties or entities;
(ii) The Executive further agrees that he or she will not at any time discuss any matter concerning the Company with anyone adverse or potentially adverse to the Company on any matter, including, without limitation, employment claims or customer claims, without the prior written consent of the Company. However, if required by a governmental regulatory agency or self-regulatory agency to provide testimony or information regarding the Company, the Executive will cooperate with said regulatory agency. If compelled to testify by a validly served subpoena or by regulatory authority, the Executive will testify truthfully as to all matters concerning his or her employment with the Company. If a regulatory agency or self-regulatory agency contacts the Executive regarding the Company or if the Executive receives a subpoena or other court or legal process relating in any way to the Company, or any present or former Company customer or employee, the Executive immediately will give the Company prior written notice and shall make himself or herself available to be interviewed concerning the subject matter of such contact; and
(iii) The Executive agrees to cooperate with and make himself or herself readily available to the Company or its General Counsel, as the Company may reasonably request, to assist it in any matter, including litigation or proceedings or potential litigation or proceedings, over which the Executive may have knowledge, information or expertise, provided, however, that the Company shall pay the reasonable out-of-pocket expenses of the Executive in performing his or her obligations under this Section 2(g)(iii).
Appears in 2 contracts
Sources: Severance Agreement (Express Scripts Inc), Severance Agreement (Express Scripts Inc)
Additional Agreements. 6.1 Preparation of the Form S-4 and the Proxy Statement; MSLO Stockholders Meeting.
(a) Subject As soon as practicable following the date of this Agreement, Sequential and MSLO shall prepare, and Sequential shall cause TopCo to Section 5.10(b)file with the SEC, Parent the Form S-4, including the related Proxy Statement/Prospectus and Information Statement. Each of Sequential and MSLO shall use reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of Sequential and MSLO shall furnish all information concerning such Person and its Affiliates to the other, and provide such other assistance, as may be reasonably requested, in connection with the preparation, filing and distribution of the Form S-4, Proxy Statement/Prospectus and Information Statement. The Form S-4 and Proxy Statement/Prospectus shall include all information reasonably requested by such other party to be included therein. Each of Sequential and MSLO shall promptly notify the other upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Form S-4 or Proxy Statement/Prospectus and shall provide the other with copies of all correspondence between it and its Representatives, on one hand, and the Company SEC, on the other hand. Each of Sequential and MSLO shall use all its reasonable best efforts to take, respond as promptly as practicable to any comments from the SEC with respect to the Form S-4 or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this AgreementProxy Statement/Prospectus. Without limiting the generality of Notwithstanding the foregoing, but subject prior to Section 5.10(b)filing the Form S-4 (or any amendment or supplement thereto) or mailing the Proxy Statement/Prospectus (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each party to this Agreement of Sequential and MSLO (i) shall make all filings provide the other an opportunity to review and comment on such document or response (if anyincluding the proposed final version of such document or response) and give (ii) shall include in such document or response all notices (if any) comments reasonably proposed by the other. Each of Sequential and MSLO shall advise the other, promptly after receipt of notice thereof, of the time of effectiveness of the Form S-4, the issuance of any stop order relating thereto or the suspension of the qualification of shares of TopCo Common Stock for offering or sale in any jurisdiction, and each of Sequential and MSLO shall use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Sequential shall also cause TopCo to take any other action required to be made taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or “blue sky” laws and given by such party the rules and regulations thereunder in connection with the Mergers, the issuance of the Merger Consideration and the other transactions contemplated by this Agreementissuance of shares of TopCo Common Stock under the Sequential Benefit Plans. If at any time prior to the Effective Time any information relating to Sequential, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or ContractMSLO, or otherwise) by such party in connection with the Merger TopCo, or any of their respective Affiliates, officers or directors, should be discovered by Sequential, MSLO or TopCo that should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement/Prospectus, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other transactions contemplated by this Agreementparties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver extent required by law, disseminated to Parent a copy the stockholders of each such filing made, each such notice given Sequential and each such Consent obtained by the Company during the Pre-Closing PeriodMSLO.
(b) Notwithstanding anything MSLO shall use its reasonable best efforts to, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly give notice of, convene and hold a meeting of its stockholders (the “MSLO Stockholders Meeting”), and shall within five Business Days of the effectiveness of the Form S-4 publicly announce the date of the MSLO Stockholders Meeting, in accordance with the DGCL and MSLO’s certificate of incorporation and bylaws for the purpose of obtaining the MSLO Stockholder Approval and shall, subject to the contrary contained in provisions of Section 5.5, through its Board of Directors, recommend to its stockholders the adoption and approval of this Agreement, Parent shall not have any obligation under this Agreement: . MSLO may only postpone or adjourn the MSLO Stockholders Meeting (i) to dispose or cause any solicit additional proxies for the purpose of its subsidiaries to dispose of any assetsobtaining the MSLO Stockholder Approval, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any for the absence of its subsidiaries to discontinue offering any producta quorum, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license with the consent of Sequential or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate allow reasonable additional time for the filing and/or mailing of any supplemental or amended disclosure that MSLO has determined after consultation with outside legal counsel is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of MSLO prior to the MSLO Stockholders Meeting. MSLO shall use its reasonable best efforts to (i) cause any of its subsidiaries the Proxy Statement/Prospectus to be mailed to MSLO’s stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act and to hold separate any assets or operations (either before or the MSLO Stockholders Meeting as soon as practicable after the Closing Date)Form S-4 becomes effective and (ii) subject to the provisions of Section 5.5, or solicit the MSLO Stockholder Approval. MSLO shall, through the MSLO Board, recommend to commit to cause any its stockholders that they vote in favor of the Acquired Corporations MSLO Merger and shall include such recommendation in the Proxy Statement/Prospectus, except to hold separate any assets the extent that the MSLO Board shall have made an Adverse Recommendation Change as permitted by Section 5.5. MSLO agrees, subject to Section 5.5, that its obligations pursuant to this Section 6.1 shall not be affected by the commencement, public proposal, public disclosure or operations; or (v) communication to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations MSLO of any of the Acquired CorporationsAcquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Martha Stewart Living Omnimedia Inc), Merger Agreement (Sequential Brands Group, Inc.)
Additional Agreements. Section 6.01 Preparation of the Form S-4, Proxy Statement and Schedule 13E-3; Company Stockholders Meeting.
(a) Subject As promptly as practicable after the date hereof the Company shall use reasonable best efforts to Section 5.10(b)prepare and cause to be filed with the SEC a proxy statement to be sent to the stockholders of the Company relating to the Company Stockholders Meeting (together with any amendments or supplements thereto, the “Proxy Statement”) and Parent shall prepare and cause to be filed with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus, and the Schedule 13E-3, and Parent and the Company shall use all their respective reasonable best efforts to takehave the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing. Each of the Company and Parent shall furnish all information concerning such Person and its Affiliates to the other, or cause and provide such other assistance, as may be reasonably requested in connection with the preparation, filing and distribution of the Form S-4, the Schedule 13E-3 and the Proxy Statement, and the Form S-4, the Schedule 13E-3 and the Proxy Statement shall consider in good faith the inclusion of all information reasonably requested by such other party to be taken, all actions necessary to consummate included therein. Each of the Merger Company and make effective Parent shall promptly notify the other transactions contemplated by this Agreementupon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Form S-4, the Schedule 13E-3 or the Proxy Statement and shall provide the other with copies of all correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. Without limiting Each of the generality of Company and Parent shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments from the SEC with respect to the Form S-4, the Schedule 13E-3 or the Proxy Statement. Notwithstanding the foregoing, but subject prior to Section 5.10(b)filing the Form S-4 or the Schedule 13E-3 (or any amendment or supplement thereto) or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each party to this Agreement of the Company and Parent (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and provide the other transactions contemplated by this Agreementa reasonable opportunity to review and comment on such document or response (including the proposed final version of such document or response), (ii) shall use consider in good faith the inclusion in such document or response all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) comments reasonably proposed by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall not file or mail such document or respond to the SEC prior to receiving the approval of the other, which approval shall not be unreasonably withheld, conditioned or delayed, but, in each case, the foregoing shall not apply to any document relating to a Change in Recommendation. Each of the Company and Parent shall advise the other, promptly after receipt of notice thereof, of the time of effectiveness of the Form S-4, the issuance of any stop order relating thereto or the suspension of the qualification of the Merger Consideration for offering or sale in any jurisdiction, and each of the Company and Parent shall use all its reasonable best efforts to lift have any restraintsuch stop order or suspension lifted, injunction reversed or other legal bar to the Mergerotherwise terminated. The Company shall promptly deliver to Parent a copy Each of each such filing made, each such notice given and each such Consent obtained by the Company during and Parent shall also take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Pre-Closing PeriodSecurities Act, the Exchange Act, any applicable state securities or “blue sky” laws and the rules and regulations thereunder in connection with the Transactions.
(b) Notwithstanding anything If prior to the contrary Effective Time, any event occurs with respect to Parent, or any change occurs with respect to other information supplied by Parent for inclusion in the Proxy Statement, the Form S-4 or the Schedule 13E-3, which is required to be described in an amendment of, or a supplement to, the Proxy Statement, the Form S-4 or the Schedule 13E-3, Parent shall promptly notify the Company of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement, the Form S-4 or the Schedule 13E-3 and, as required by Law, in disseminating the information contained in such amendment or supplement. Nothing in this Section 6.01(b) shall limit the obligations of any party under Section 6.01(a).
(c) If prior to the Effective Time, any event occurs with respect to the Company or any Company Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Proxy Statement, the Form S-4 or the Schedule 13E-3, which is required to be described in an amendment of, or a supplement to, the Proxy Statement, the Form S-4 or the Schedule 13E-3, the Company shall promptly notify Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement, the Form S-4 or the Schedule 13E-3 and, as required by Law, in disseminating the information contained in such amendment or supplement. Nothing in this Section 6.01(c) shall limit the obligations of any party under Section 6.01(a).
(d) The Company shall, as soon as reasonably practicable following the date of this Agreement, Parent duly call, give notice of, convene and hold the Company Stockholders Meeting for the sole purposes of seeking the Company Requisite Stockholder Approvals, considering and voting (on a non-advisory basis) upon specified compensation that may become payable to certain of the Company’s executive officers (if required), considering and voting upon a proposal to adjourn the Company Stockholders Meeting from time to time to a later date, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the Company Stockholders Meeting to obtain the Company Requisite Stockholder Approvals, and transacting such other business as may properly come before the Company Stockholders Meeting or any adjournment or postponement of the Company Stockholders Meeting. The Company shall not have any obligation under this Agreement: use its reasonable best efforts to (i) cause the Proxy Statement to dispose or cause any of its subsidiaries be mailed to dispose of any assets, or the Company’s stockholders as promptly as reasonably practicable after the Form S-4 is declared effective under the Securities Act and to commit to cause any of hold the Acquired Corporations to dispose of any assets; Company Stockholders Meeting as soon as reasonably practicable after the Form S-4 becomes effective and (ii) subject to discontinue a Change in Recommendation, solicit the Company Requisite Stockholder Approvals. The Company shall, through the Company Board and the Special Committee, recommend to its stockholders that they give the Company Requisite Stockholder Approvals and shall include such recommendation in the Proxy Statement, except to the extent that the Company Board or cause any Special Committee shall have made a Change in Recommendation as permitted by Section 5.02(f) or Section 5.02(g). If on a date for which the Company Stockholders Meeting is scheduled, the Company has not received proxies representing a sufficient number of its subsidiaries shares of Company Common Stock to discontinue offering any productobtain the Company Requisite Stockholder Approvals, whether or to commit to cause any of not a quorum is present, the Acquired Corporations to discontinue offering any product; Company shall have the right (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of but not the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (vobligation) to make one or cause more successive postponements or adjournments of the Company Stockholders Meeting, provided that (excluding any of adjournments or postponements required by applicable Law) the Company Stockholders Meeting is not postponed or adjourned to a date that is more than thirty (30) days after the date for which the Company Stockholders Meeting was originally scheduled (excluding any adjournments or postponements required by applicable Law). The Company agrees that its Subsidiaries obligations pursuant to make any commitment (this Section 6.01 shall not be affected by the commencement, public proposal, public disclosure or communication to any Governmental Body or otherwise) regarding its future operations or the future operations Company of any Company Acquisition Proposal, by the making of any Change in Recommendation or by the Acquired Corporationsoccurrence of an Intervening Event. Notwithstanding the foregoing, the Company may adjourn or postpone the Company Stockholders Meeting from time to time (i) with the consent of Parent (not to be unreasonably withheld, conditioned or delayed) or (ii) if the Company determines an amendment or supplement to the Proxy Statement is required by applicable Law (in which case the Company Stockholders Meeting shall be adjourned to ensure the amendment or supplement is provided to the Company’s stockholders).
Appears in 2 contracts
Sources: Merger Agreement (Jefferies Financial Group Inc.), Merger Agreement (Homefed Corp)
Additional Agreements. Section 6.01 Preparation of the Form S-4 and the Proxy Statement; Company Stockholders Meeting.
(a) Subject As soon as practicable following the date of this Agreement, the Company shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent will respond promptly to Section 5.10(bany comments from the SEC or the staff of the SEC on the Proxy Statement or the Form S-4. Each of the Company and Parent shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and maintain the Form S-4's effectiveness for so long as necessary to consummate the Merger. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to the stockholders of the Company as promptly as practicable after the Form S-4 is declared effective under the Securities Act (but in no event later than three (3) business days after the date the Form S-4 is declared effective). Parent shall also take any action required to be taken under any applicable state securities Laws in connection with the issuance of shares of Parent Common Stock in the Merger, Parent and the Company shall use furnish all reasonable efforts to takeinformation concerning the Company and the holders of shares of Company Common Stock as may be reasonably requested by Parent in connection with any such action. No filing of, or cause amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will be takenmade by the Company, all actions without providing the other party and its counsel a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to consummate make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the stockholders of the Company. The parties shall notify each other promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of (i) all correspondence between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger and make effective (ii) all orders of the SEC relating to the Form S-4.
(b) The Company shall, as soon as practicable following the date of this Agreement, establish a record date for and promptly take any and all actions in connection therewith, and as soon as practicable after the Form S-4 is declared effective, duly call, give notice of, convene and hold, a meeting of its stockholders (the "Company Stockholders Meeting") solely for the purpose of obtaining the Company Stockholder Approval. Subject to Section 5.02(b), the Company shall, through the Company Board, recommend to its stockholders adoption of this Agreement, the Merger and the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject the Company's obligations pursuant to the first sentence of this Section 5.10(b), each party to this Agreement 6.01(b) shall not be affected by (i) shall make all filings (if any) and give all notices (if any) required the commencement, public proposal, public disclosure or communication to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, Company of any Company Takeover Proposal or (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing PeriodAdverse Recommendation Change.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 2 contracts
Sources: Merger Agreement (Unitedhealth Group Inc), Merger Agreement (Pacificare Health Systems Inc /De/)
Additional Agreements. Section 6.1. Preparation of the Form S-4 and the Joint Proxy Statement/Prospectus; Stockholders Meetings.
(a) As soon as reasonably practicable following the date of this Agreement, Amedisys and OPCH shall prepare the Form S-4 and the Joint Proxy Statement/Prospectus, and OPCH shall file the Form S-4, which shall include the Joint Proxy Statement/Prospectus as a prospectus, with the SEC. The parties shall consult each other in connection with setting a preliminary record date for each of the Amedisys Stockholders Meeting and the OPCH Shareholders Meeting and shall commence broker searches pursuant to Section 14a-13 of the Exchange Act in connection therewith. Each of Amedisys and OPCH shall use reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Amedisys and OPCH shall, as promptly as practicable after receipt thereof, provide the other party copies of any written comments and advise the other party of any oral comments, with respect to the Form S-4 or the Joint Proxy Statement/Prospectus received from the SEC. OPCH and Amedisys shall cooperate and provide the other parties with a reasonable opportunity to review and comment on any amendment or supplement to the Form S-4 or the Joint Proxy Statement/Prospectus prior to filing such with the SEC. No filing of, or amendment or supplement to, the Form S-4 will be made by OPCH, and no filing of, or amendment or supplement to, the Joint Proxy Statement/Prospectus will be made by OPCH or Amedisys, in each case without providing the other with a reasonable opportunity to review and comment (which comments shall be considered by the applicable party in good faith) thereon if reasonably practicable; provided that with respect to documents filed by a party that are incorporated by reference in the Form S-4 or the Joint Proxy Statement/Prospectus, this right of review and comment shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, or the combined entity or the transactions contemplated hereby; and provided, further, that this review and comment right shall not apply with respect to information relating to an Amedisys Recommendation Change or an OPCH Recommendation Change. Amedisys shall use reasonable best efforts to cause the Joint Proxy Statement to be mailed to Amedisys’s stockholders, and OPCH shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be mailed to OPCH’s stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Each party shall advise the other parties, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, of the time when any supplement or amendment to the Form S-4 has been filed, of the issuance of any stop order with respect to the Form S-4, or of any request by the SEC for amendment of the Form S-4 or the Joint Proxy Statement/Prospectus or comments on the Form S-4 or the Joint Proxy Statement/Prospectus and responses thereto or requests by the SEC for additional information relating thereto. If at any time prior to the Effective Time any information relating to Amedisys, OPCH or any of their respective affiliates, officers or directors, should be discovered by Amedisys or OPCH that should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to the stockholders of Amedisys and OPCH.
(b) Amedisys shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly give notice of, convene and hold a meeting of its stockholders (the “Amedisys Stockholders Meeting”) in accordance with the DGCL and the rules of the NASDAQ for the purpose of obtaining the Amedisys Stockholder Approval and shall, subject to the provisions of Section 5.2(b) and Section 5.2(d), through its Board of Directors, recommend to its stockholders the adoption of this Agreement. Amedisys may only postpone or adjourn the Amedisys Stockholders Meeting (i) to solicit additional proxies for the purpose of obtaining the Amedisys Stockholder Approval, (ii) for the absence of a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that Amedisys has determined after consultation with outside legal counsel is reasonably likely to be required under Applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of Amedisys prior to the Amedisys Stockholders Meeting.
(c) OPCH shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly give notice of, convene and hold a meeting of its stockholders (the “OPCH Stockholders Meeting”) in accordance with the DGCL and the rules of the NASDAQ for the purpose of obtaining the OPCH Stockholder Approvals and shall, subject to the provisions of Section 5.3(b) and Section 5.3(d), through its Board of Directors, recommend to its stockholders the approval of the OPCH Share Issuance and the adoption of the OPCH Charter Amendment. OPCH may only postpone or adjourn the OPCH Stockholders Meeting (i) to solicit additional proxies for the purpose of obtaining the OPCH Stockholder Approvals, (ii) for the absence of a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that OPCH has determined after consultation with outside legal counsel is reasonably likely to be required under Applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of OPCH prior to the OPCH Stockholders Meeting.
(d) Amedisys and OPCH shall use reasonable best efforts to hold the Amedisys Stockholders Meeting and the OPCH Stockholders Meeting on the same date and as soon as reasonably practicable after the date of this Agreement.
(e) Subject to the terms and conditions of this Agreement, including Section 5.10(b5.2 and Section 5.3, Amedisys and OPCH shall use reasonable best efforts to (i) solicit from Amedisys’s stockholders (in the case of Amedisys) and OPCH’s stockholders (in the case of OPCH) proxies in favor of the Amedisys Stockholder Approval and the OPCH Stockholder Approvals, respectively, and (ii) take all other action necessary or advisable to secure the Amedisys Stockholder Approval and the OPCH Stockholder Approvals, respectively.
(f) The only matters to be voted upon at each of the Amedisys Stockholders Meeting and the OPCH Stockholders Meeting are (i) the Merger, in the case of the Amedisys Stockholders Meeting, and the OPCH Share Issuance and the OPCH Charter Amendment, in the case of the OPCH Stockholders Meeting, (ii) compensatory arrangements between Amedisys and its executive officers relating to the Merger (on a non-binding, advisory basis), Parent in the case of the Amedisys Stockholders Meeting, and (iii) any adjournment or postponement of the Amedisys Stockholders Meeting or the OPCH Stockholders Meeting, as applicable, for a reasonable period to solicit additional proxies, if deemed necessary by Amedisys or OPCH, respectively, and (iv) any other matters that are (I) required by Applicable Law or the Bylaws of OPCH or Amedisys, as applicable, or (II) if so desired and mutually agreed on, of the type customarily brought before a meeting of stockholders in connection with approval of this Agreement and the Company shall use all reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. .
(g) Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) OPCH agrees that its obligations pursuant to this Section 6.1 to hold the OPCH Stockholders Meeting shall make all filings not be affected by the commencement, public proposal, public disclosure or communication to OPCH or any other person of any OPCH Alternative Transaction or the making of an OPCH Recommendation Change and (if anyii) Amedisys agrees that its obligations pursuant to this Section 6.1 to hold the Amedisys Stockholders Meeting shall not be affected by the commencement, public proposal, public disclosure or communication to Amedisys or any other person of any Amedisys Alternative Transaction or the making of an Amedisys Recommendation Change.
(h) Each of Amedisys and give all notices OPCH agrees that none of the information supplied or to be supplied by such party (if anyor its subsidiaries) for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with the SEC, and at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be made and given by such party stated therein or necessary in connection with order to make the Merger and statements therein, in the other transactions contemplated by this Agreementlight of the circumstances under which they are made, not misleading, or (ii) shall use all reasonable efforts the Joint Proxy Statement/Prospectus will, at the date it is first mailed to obtain each Consent (if any) OPCH's or Amedisys's stockholders or at the time of the OPCH Stockholders Meeting or the Amedisys Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be obtained (pursuant stated therein or necessary in order to any applicable Legal Requirement or Contractmake the statements therein, or otherwise) by such party in connection light of the circumstances under which they are made, not misleading. Each of Amedisys and OPCH will cause the Form S-4 and the Joint Proxy Statement/Prospectus to comply as to form in all material respects with the Merger requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. Notwithstanding the foregoing, no covenant is made by either Amedisys or any OPCH with respect to statements made or incorporated by reference therein based on information supplied by or on behalf of the other transactions contemplated party (or its subsidiaries) for inclusion or incorporation by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to reference in the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations Form S-4 or the future operations of any of the Acquired CorporationsJoint Proxy Statement/Prospectus.
Appears in 2 contracts
Sources: Merger Agreement (Amedisys Inc), Merger Agreement (Option Care Health, Inc.)
Additional Agreements. SECTION 6.01. PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) Subject As soon as practicable following the date of this Agreement, the Company and Parent shall prepare and file with the SEC a joint proxy statement (the "Joint Proxy Statement") in preliminary form and Parent shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus, and each of the Company and Parent shall use its reasonable efforts to Section 5.10(b), respond as promptly as practicable to any comments of the SEC with respect thereto. Each of the Company and Parent shall use its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Stock Plans and the Company shall use furnish all reasonable efforts to take, or cause to be taken, all actions necessary to consummate information concerning the Merger Company and make effective the other transactions contemplated by this Agreement. Without limiting the generality holders of the foregoing, but subject Company Common Stock and rights to Section 5.10(b), each party acquire Company Common Stock pursuant to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to the Company Stock Plans as may be made and given by such party reasonably requested in connection with any such action. The parties shall notify each other promptly of the Merger receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Joint Proxy Statement or the Form S-4 or for additional information and shall supply each other transactions contemplated by this Agreement, (ii) shall use with copies of all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by correspondence between such party in connection with the Merger or any of its representatives, on the one hand, and the SEC or its staff, on the other transactions contemplated by this Agreementhand, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar with respect to the Joint Proxy Statement, the Form S-4 or the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything If, at any time prior to the contrary contained in this Agreementreceipt of the Company Stockholder Approval or the Parent Stockholder Approval, Parent shall not have any obligation under this Agreement: (i) event occurs with respect to dispose the Company or cause any of its subsidiaries to dispose of any assetsCompany Subsidiary, or any change occurs with respect to commit other information supplied by the Company for inclusion in the Joint Proxy Statement or the Form S-4, which is required to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any productbe described in an amendment of, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make availablea supplement to, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.the
Appears in 2 contracts
Sources: Stockholders Agreement (Boyd Gaming Corp), Stockholders Agreement (Boyd Gaming Corp)
Additional Agreements. Section 6.1 Preparation of Form F-4 and Schedule 13E-3.
(a) Subject to Section 5.10(b)As promptly as practicable after the execution of this Agreement, Parent shall, with the assistance of the Company, prepare and file with the SEC a registration statement on Form F-4 with respect to the Parent Shares to be issued with the Merger. Parent shall promptly respond to any comments made by the SEC regarding the Form F-4 and shall endeavor to have the Form F-4 declared effective under the Securities Act promptly after filing with the SEC and cause the Prospectus to be delivered to the shareholders or holders of Company ADSs. No filing of, or amendment or supplement to, the Form F-4 will be made by Parent without providing the Company a reasonable opportunity to review and comment thereon. Each Party shall, as promptly as practicable after the receipt thereof, provide to the other Party copies of any written comments and advise the other Party of any oral comments, with respect to the Form F-4 received from the staff of the SEC. The Company shall furnish as promptly as practicable such information concerning the Company reasonably requested in connection with the Form F-4 or other filings required under applicable Laws.
(b) Parent, Merger Sub and the Company shall prepare and file with the SEC the Schedule 13E-3. Parent, Merger Sub and the Company shall cause the Schedule 13E-3 to comply with the rules and regulations promulgated by the SEC and respond promptly to any comments of the SEC regarding the Schedule 13E-3. Each Party shall, as promptly as practicable after the receipt thereof, provide to the other Party copies of any written comments and advise the other Party of any oral comments, with respect to the Schedule 13E-3 received from the staff of the SEC. Each of Parent, Merger Sub and the Company will be provided with a reasonable opportunity to review and comment on the initial Schedule 13E-3 and any amendment or supplement thereto prior to filing with the SEC.
(c) If at any time prior to the Effective Time, any information relating to each Party or any of its Affiliates, directors or officers should be discovered by such Party, which should be set forth in an amendment or supplement to the Form F-4 or Schedule 13E-3 so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, such Party shall promptly notify the other Party of such information and the other Party shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form F-4 or Schedule 13E-3.
(d) Parent shall use all reasonable efforts to take, or cause any Parent ADSs to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party issued in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant approved for listing on The New York Stock Exchange, such listing to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any be subject to official notice of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Periodissuance.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 2 contracts
Sources: Merger Agreement (E-House (China) Holdings LTD), Merger Agreement (China Real Estate Information Corp)
Additional Agreements. 5.1 Information Statement and Proxy Statement. -----------------------------------------
(a) Subject to Section 5.10(b)As soon as practicable after the execution of this Agreement, Parent and the Company shall use all prepare, with the cooperation and reasonable efforts assistance of Parent, and furnish to takeits shareholders an Information Statement for the shareholders of Company to approve and adopt this Agreement, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting The Information Statement shall constitute a disclosure document for the generality offer and issuance of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required shares of Parent Common Stock to be made received by the holders of Company Capital Stock in the Merger and given a proxy statement for solicitation of shareholder consent to or approval of this Agreement, the Merger and the other transactions contemplated hereby, and may be combined with the Proxy Statement as a joint proxy/information statement. Parent and Company shall each use its reasonable best efforts to cause the Information Statement to comply with applicable federal and state securities laws requirements. Each of Parent and Company agrees to provide promptly to the other such information concerning it and its respective affiliates, directors, officers and securityholders as, in the reasonable judgment of the other party or its counsel, may be required or appropriate for inclusion in the Information Statement, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Information Statement. Company will promptly advise Parent, and Parent will promptly advise Company, in writing if at any time prior to the Effective Time either Company or Parent shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Information Statement in order to make the statements contained or incorporated by such party in connection reference therein not misleading or to comply with applicable law. The Information Statement shall contain the recommendation of the Board of Directors of Company that Company shareholders approve and adopt this Agreement, the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with and the conclusion of the Board of Directors that the terms and conditions of the Merger or any are fair and reasonable and in the best interests of the other transactions contemplated by this Agreement, Company and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar its shareholders. Anything to the Merger. The contrary contained herein notwithstanding, Company shall promptly deliver not include in the Information Statement any information with respect to Parent a copy or its affiliates or associates, the form and content of each which information shall not have been approved by Parent prior to such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Periodinclusion.
(b) Notwithstanding anything to As soon as practicable after the contrary contained in execution of this Agreement, Parent shall not have any obligation under prepare, with the cooperation of Company, and file with the SEC preliminary proxy materials relating to the Parent Stockholders Meeting and the vote of the stockholders of Parent on the issuance of the Merger Shares pursuant to this Agreement: . Parent and Company shall each use its reasonable best efforts to cause the Proxy Statement to comply in all material respects with the Exchange Act and all other applicable federal and state securities law requirements. Each of Parent and Company shall, and shall cause its respective representatives to, fully cooperate with the other such party and its representatives in the preparation of the Proxy Statement, and shall promptly provide to the other such information concerning it and its respective affiliates, directors, officers and securityholders as the other may reasonably request in connection with the preparation of the Proxy Statement. If at any time prior to the Effective Time Company or Parent shall become aware of any fact, event or circumstance that is required to be set forth in an amendment or supplement to the Proxy Statement, such party shall promptly notify the other of such fact, event or circumstance and the other parties shall cooperate with each other in filing with the SEC or any other governmental official and mailing to Parent stockholders such amendment or supplement. The Proxy Statement shall contain the recommendation of the Board of Directors of Parent in favor of the Parent Stockholder Approval; provided, that the Board of Directors of Parent -------- shall have the right to omit, withdraw or modify such recommendation in the event that a Parent Superior Proposal has been made and Parent's Board of Directors has concluded in good faith, after considering applicable state law, on the basis of written advice of outside counsel, that inclusion of such recommendation would not be a proper exercise of the Parent's board of directors' fiduciary duties to Parent's stockholders under applicable law. Notwithstanding any such omission, withdrawal or modification, Parent shall convene and hold (iand shall take all action otherwise required by this Agreement to convene and hold) the Parent Stockholders Meeting. Without limiting the generality of the foregoing, Parent shall use its reasonable best efforts to dispose respond promptly to any comments made by the SEC with respect to the Proxy Statement (including each preliminary version thereof) and to clear the Proxy Statement as promptly as practicable hereafter. As promptly as practicable after SEC clearance of the Proxy Statement, Parent shall file with the SEC the definitive Proxy Statement and mail or cause to be mailed the Proxy Statement to its stockholders.
(c) As soon as practicable after the execution of this Agreement, Parent shall prepare, with the cooperation of Company, the Permit Application. Parent and Company shall each use commercially reasonable efforts to cause the Permit Application to comply with the requirements of applicable federal and state laws. Each of Parent and Company agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Permit Application, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of its subsidiaries the Permit Application. Company will promptly advise Parent, and Parent will promptly advise Company, in writing if at any time prior to dispose the Effective Time either Company or Parent shall obtain knowledge of any assets, facts that might make it necessary or appropriate to amend or supplement the Permit Application in order to make the statements contained or incorporated by reference therein not misleading or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationscomply with applicable law.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Sandpiper Networks Inc), Agreement and Plan of Reorganization (Digital Island Inc)
Additional Agreements. Section 5.01 Preparation of the Form S-4 and the Joint Proxy Statement; Shareholders Meetings.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, Parent Cinergy and Duke shall prepare and file with the SEC the Joint Proxy Statement and Cinergy, Duke and the Company shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included. Each of Cinergy, Duke and the Company shall use all its reasonable best efforts to takehave the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Cinergy will use its reasonable best efforts to cause the Joint Proxy Statement to be mailed to Cinergy's shareholders, and Duke will use its reasonable best efforts to cause the Joint Proxy Statement to be mailed to Duke's shareholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Each party hereto shall also take any action required to be taken under any applicable state or provincial securities laws in connection with the issuance of Company Common Stock in the Mergers and each party shall furnish all information concerning itself and its shareholders as may be reasonably requested in connection with any such action. Each party will advise the others, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Company Common Stock issuable in connection with the Mergers for offering or sale in any jurisdiction, or cause any request by the SEC for amendment of the Joint Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If prior to the Effective Time any event occurs with respect to Cinergy, Duke or any subsidiary of Cinergy or Duke, respectively, or any change occurs with respect to information supplied by or on behalf of Cinergy or Duke, respectively, for inclusion in the Joint Proxy Statement or the Form S-4 that, in each case, is required to be takendescribed in an amendment of, all actions necessary to consummate or a supplement to, the Merger and make effective Joint Proxy Statement or the Form S-4, Cinergy or Duke, as applicable, shall promptly notify the other transactions contemplated and the Company of such event, and Cinergy or Duke, as applicable, shall cooperate with the Company in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement and the Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to Cinergy's shareholders and to Duke's shareholders.
(b) Cinergy shall, as soon as reasonably practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Cinergy Shareholders Meeting") for the purpose of obtaining the Cinergy Shareholder Approval. Without limiting the generality of the foregoing, but subject Cinergy agrees that its obligations pursuant to the first sentence of this Section 5.10(b), each party to this Agreement 5.01(b) shall not be affected by (i) shall make all filings the commencement, public proposal, public disclosure or communication to Cinergy of any Cinergy Takeover Proposal, (if anyii) and give all notices (if any) required to be made and given the withdrawal or modification by such party in connection with the Board of Directors of Cinergy of its approval or recommendation of this Agreement, the Cinergy Merger and or the other transactions contemplated by this Agreementhereby, or (iii) the approval or recommendation of any Cinergy Superior Proposal. Notwithstanding any of the events set forth in clauses (i), (ii) shall use all reasonable efforts to obtain each Consent and (if anyiii) required to be obtained (of the immediately preceding sentence, in the event Cinergy fulfills its obligations pursuant to this Section 5.01(b) and the Cinergy Shareholder Approval is not obtained at the Cinergy Shareholders Meeting, Duke shall not thereafter have the right to terminate this Agreement pursuant to Sections 7.01(h)(i) as a result of the Board of Directors of Cinergy (or any applicable Legal Requirement committee thereof) having, pursuant to Section 4.03(b)(ii), withdrawn or Contractmodified, or otherwise) proposed publicly to withdraw or modify, the approval or recommendation by such party Board of Directors of this Agreement or the Cinergy Merger, provided Duke shall retain all other rights to terminate this Agreement set forth in connection with Section 7.01.
(c) Duke shall, as soon as reasonably practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Duke Shareholders Meeting") for the purpose of obtaining the Duke Shareholder Approval. Without limiting the generality of the foregoing, Duke agrees that its obligations pursuant to the first sentence of this Section 5.01(c) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to Duke of any Duke Takeover Proposal, (ii) the withdrawal or modification by the Board of Directors of Duke of its approval or recommendation of this Agreement, the Duke Merger or any of the other transactions contemplated by this Agreementhereby, or (iii) the approval or recommendation of any Duke Superior Proposal. Notwithstanding any of the events set forth in clauses (i), (ii) and (iii) of the immediately preceding sentence, in the event Duke fulfills its obligations pursuant to this Section 5.01(c) and the Duke Shareholder Approval is not obtained at the Duke Shareholders Meeting, Cinergy shall use not thereafter have the right to terminate this Agreement pursuant to Sections 7.01(g)(i) as a result of the Board of Directors of Duke (or any committee thereof) having, pursuant to Section 4.04(b)(ii), withdrawn or modified, or proposed publicly to withdraw or modify, the approval or recommendation by such Board of Directors of this Agreement or the Duke Merger, provided Cinergy shall retain all reasonable efforts other rights to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Periodterminate this Agreement set forth in Section 7.01.
(bd) Notwithstanding anything Cinergy and Duke will use their reasonable best efforts to hold the contrary contained in Duke Shareholders Meeting and the Cinergy Shareholders Meeting on the same date and as soon as practicable after the date of this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 2 contracts
Sources: Merger Agreement (Cinergy Corp), Merger Agreement (Duke Energy Corp)
Additional Agreements. Section 6.01 Preparation of the Proxy Statement and Schedule 13E-3; Company Shareholders Meeting.
(a) Subject to Section 5.10(b)As reasonably promptly as practicable following the Agreement Date, Parent and the Company shall use will, in a manner that complies in all reasonable efforts material respects with Regulation 14A promulgated under the Exchange Act with respect to takethe Transactions, or prepare and cause to be takenfiled with the SEC a proxy statement to be sent to the Company’s shareholders relating to the Company Shareholders Meeting that reflects the terms and conditions of this Agreement, all actions necessary to consummate and includes the notice of appraisal rights in the Merger and make effective to the other transactions contemplated holders of shares of Company Shares as required by this Agreement. Without limiting the generality Section 106(2) of the foregoingBermuda Companies Act, but subject to Section 5.10(band a copy of the Fairness Opinion in its entirety (including a description of the Fairness Opinion and the financial analysis relating thereto), each party (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement”). Parent will furnish to this Agreement (i) shall make the Company all filings (if any) information reasonably requested by the Company concerning Parent, Sumitomo or Merger Sub, and give all notices (if any) required to be made and given by provide such party other assistance, as the Company may reasonably request in connection with the Merger preparation, filing and distribution of the Proxy Statement. The Company will notify Parent reasonably promptly after its receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and will provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC, on the other transactions contemplated by this Agreementhand. The Company will use its reasonable best efforts to respond as reasonably promptly as practicable to any comments from the SEC with respect to the Proxy Statement, and Parent will cooperate in connection therewith. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company will (i) provide Parent an opportunity to review and comment on the Proxy Statement or response (including the proposed final version of the Proxy Statement or response); and (ii) shall use include all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) comments reasonably proposed by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing PeriodParent.
(b) Notwithstanding anything The Company and Parent will cooperate to (i) concurrently with the preparation and filing of the Proxy Statement, jointly prepare and file with the SEC a Rule 13E-3 Transaction Statement on Schedule 13E-3 (together with any amendments thereof or supplements thereto, the “Schedule 13E-3”) relating to the contrary Transactions, and furnish to each other all information concerning such Party as may be reasonably requested in connection with the preparation of the Schedule 13E-3; (ii) respond as reasonably promptly as practicable to any comments received from the SEC with respect to the Schedule 13E-3 and consult with each other prior to providing such response; (iii) as promptly as reasonably practicable, prepare and file any amendments or supplements necessary to be filed in response to any such comments; (iv) use its reasonable best efforts to have cleared by the staff of the SEC the Schedule 13E-3; and (v) to the extent required by applicable Law, as promptly as reasonably practicable prepare and file any supplement or amendment to the Schedule 13E-3. Each Party will promptly notify the other Parties upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Schedule 13E-3 and will provide the other Parties with copies of all correspondence between such Party and its Representatives, on the one hand, and the SEC, on the other hand.
(c) If prior to the Effective Time any change occurs with respect to information supplied by Parent for inclusion in the Proxy Statement or the Schedule 13E-3 that is required by Law to be described in an amendment of, or a supplement to, the Proxy Statement or the Schedule 13E-3, Parent will reasonably promptly notify the Company of such change, and Parent and the Company will cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement or the Schedule 13E-3, as applicable, and as required by Law, in disseminating the information contained in such amendment or supplement to the Company’s shareholders. Nothing in this AgreementSection 6.01(c) will limit the obligations of any Party under Section 6.01(a).
(d) If prior to the Effective Time any event occurs with respect to the Company or any Company Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Proxy Statement or the Schedule 13E-3, that is required by Law to be described in an amendment of, or a supplement to, the Proxy Statement or the Schedule 13E-3, the Company will reasonably promptly notify Parent shall of such event, and the Company and Parent will cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement or the Schedule 13E-3, as applicable, and as required by Law, in disseminating the information contained in such amendment or supplement to the Company’s shareholders. Nothing in this Section 6.01(d) will limit the obligations of any Party under Section 6.01(a).
(e) The Company will, as promptly as reasonably practicable after the SEC confirms it has no further comments on the Proxy Statement and the Schedule 13E-3 (i) establish a record date for determining shareholders of the Company entitled to vote at the Company Shareholders Meeting; (ii) not change such record date or establish a different record date for the Company Shareholders Meeting without the prior written consent of Parent unless required to do so by applicable Law (and if the date of the Company Shareholders Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent has otherwise approved in writing (or as required by applicable Law or stock exchange requirement), the Company will, if possible, implement such adjournment or other delay in such a way that the Company does not need to establish a new record date for the Company Shareholders Meeting, as so adjourned or delayed); and (iii) duly call, give notice of, convene and hold the Company Shareholders Meeting for the purpose of (A) seeking the Company Shareholder Approval and the Minority Shareholder Approval, (B) in accordance with Section 14A of the Exchange Act and the applicable SEC rules issued thereunder, seeking advisory approval of a proposal to the Company’s shareholders for a non-binding, advisory vote to approve certain compensation that may become payable to the Company’s named executive officers in connection with the completion of the Merger and (C) an adjournment proposal. The Company will not change the date of, postpone or adjourn the Company Shareholders Meeting, or submit any other proposal to the Company’s shareholders in connection with the Company Shareholders Meeting, without the prior written consent of Parent. The Company will use its reasonable best efforts to (i) promptly cause the Proxy Statement to be mailed to the Company’s shareholders as of the record date established for the Company Shareholders Meeting; and (ii) except if an Adverse Recommendation Change has been made as permitted by Section 5.03(d) and remains in effect, solicit the Company Shareholder Approval and the Minority Shareholder Approval, including by retaining the services of a recognized proxy solicitor reasonably acceptable to Parent. The Company will, through the Special Committee, recommend to its shareholders that they give the Company Shareholder Approval and the Minority Shareholder Approval (the “Company Recommendation”) and will include such recommendation in the Proxy Statement and the Schedule 13E-3, in each case, unless the Special Committee has validly made an Adverse Recommendation Change as permitted by Section 5.03(d) that is still in effect. The Company agrees that, unless this Agreement is terminated in accordance with its terms prior thereto, its obligations to hold the Company Shareholders Meeting pursuant to this Section 6.01 will not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Alternative Proposal, by the making of any Adverse Recommendation Change by the Special Committee or by any other development; provided, however, that if the public announcement of an Adverse Recommendation Change or the delivery of notice by the Company to Parent pursuant to Section 5.03(d)(i) occurs less than 10 Business Days prior to the Company Shareholders Meeting, the Company will be entitled to postpone the Company Shareholders Meeting to a date not more than 10 Business Days after the date such Company Shareholders Meeting had previously been scheduled (but in no event to a date after the date that is five Business Days before the End Date).
(f) The foregoing provisions of this Section 6.01 notwithstanding, the Company will have any obligation under this Agreement: the right, after consultation in good faith with Parent, to make one or more successive changes in date, postponements or adjournments of the Company Shareholders Meeting (i) to dispose ensure that any supplement or cause any of its subsidiaries amendment to dispose of any assets, the Proxy Statement or Schedule 13E-3 required under applicable Law is timely provided to commit to cause any the shareholders of the Acquired Corporations to dispose Company within a reasonable amount of any assetstime, in the good faith judgment of the Special Committee (after consultation with outside counsel), in advance of the Company Shareholders Meeting; (ii) to discontinue if required by applicable Law or cause any of a request from the SEC or its subsidiaries to discontinue offering any product, staff; or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) if, on a date for which the Company Shareholders Meeting is scheduled, the Company has not received proxies representing a sufficient number of Common Shares to license obtain the Company Shareholder Approval and the Minority Shareholder Approval, whether or otherwise make availablenot a quorum is present; provided that (A) the duration of any such adjournment or postponement is limited to the minimum duration reasonably necessary to remedy the circumstances giving rise to such adjournment or postponement; (B) no single such adjournment or postponement is for more than five Business Days except as may be required by federal securities Laws; and (C) in the case of clause (iii), the Company Shareholders Meeting is not postponed to later than the date that is 10 Business Days after the date for which the Company Shareholders Meeting was originally scheduled without the prior written consent of Parent and that the Company will, and will cause its proxy solicitor to, use reasonable best efforts to solicit such additional proxies (or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any presence and affirmative vote in person of the Acquired Corporations to license or otherwise make available to any Person any technologyCompany’s shareholders at the Company Shareholders Meeting) as expeditiously as reasonably possible, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any it being understood that time shall be of the Acquired Corporations essence. If, on any date for which the Company Shareholders Meeting is scheduled, the Company has not received proxies representing a sufficient number of Common Shares to hold separate obtain the Minority Shareholder Approval, the Company will, at Parent’s request, postpone or adjourn the Company Shareholders Meeting on one or more occasions for up to 30 days in the aggregate to allow for the solicitation of additional proxies to obtain the Minority Shareholder Approval. The Company will also consider in good faith any assets or operations; or (v) other request by Parent to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or postpone the future operations of any of the Acquired CorporationsCompany Shareholders Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Urovant Sciences Ltd.), Merger Agreement (Sumitomo Chemical Co., Ltd.)
Additional Agreements. SECTION 6.01. PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) Subject As soon as practicable following the date of this Agreement, the Company and Parent shall prepare and file with the SEC a joint proxy statement (the "Joint Proxy Statement") in preliminary form and Parent shall prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus, and each of the Company and Parent shall use its reasonable efforts to Section 5.10(b)respond as promptly as practicable to any comments of the SEC with respect thereto. Each of the Company and Parent shall use its reasonable efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and under the Company Stock Plan and the Company shall furnish all information concerning the Company and the holders of the Company Common Stock and rights to acquire Company Common Stock pursuant to the Company Stock Plan as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Joint Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Joint Proxy Statement, the Form S-4 or the Merger.
(b) If, at any time prior to the receipt of the Company Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to the Company or any Company Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Joint Proxy Statement or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement or the Form S-4, the Company shall promptly notify Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement and the Form S-4 and, as required by Law, in disseminating the information contained in such amendment or supplement to the Company's stockholders.
(c) If, at any time prior to the receipt of the Company Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to Parent or any Parent Subsidiary, or change occurs with respect to other information supplied by Parent for inclusion in the Joint Proxy Statement or the Form S-4, which is required to be described in an amendment of, or a supplement to, the Joint Proxy Statement or the Form S-4, Parent shall promptly notify the Company of such event, and Parent and the Company shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Joint Proxy Statement and the Form S-4 and, as required by Law, in disseminating the information contained in such amendment or supplement to the Company's stockholders.
(d) The Company shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") for the purpose of seeking the Company Stockholder Approval. The Company shall use all its reasonable efforts to take, or cause the Joint Proxy Statement to be takenmailed to the Company's stockholders as promptly as practicable after the date of this Agreement. The Company shall, all actions necessary through the Company Board, recommend to consummate its stockholders that they give the Company Stockholder Approval, except to the extent that the Company Board shall have withdrawn or modified its approval or recommendation of this Agreement or the Merger and make effective as permitted by the other transactions contemplated by this Agreementlast sentence of Section 5.02(b). Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to the first sentence of this Section 5.10(b6.01(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal; it being understood and agreed among Parent, Sub and the Company that in the event that, prior to the date of the Company Stockholders Meeting, the Company withdraws or modifies its approval or recommendation of the Merger and this Agreement in accordance with the last sentence of Section 5.02(b), each party to then for purposes of the first sentence of this Agreement Section 6.01(d), the term "Company Stockholder Approval" shall mean both (i) shall make all filings (if any) the approval of this Agreement by a majority of the voting power of the holders of the outstanding Company Common Stock and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) the approval of this Agreement by such party in connection with the Merger or any a majority of the other transactions contemplated voting power of the holders of the outstanding Company Common Stock present and duly voted (in person or by this Agreement, and (iiiproxy) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by at the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained Stockholders Meeting, exclusive of those votes taken in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any respect of the Acquired Corporations to dispose shares of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any productCompany Common Stock held by Michael J. Gaughan, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsJerry Herbst and Franklin Toti.
Appears in 2 contracts
Sources: Merger Agreement (Boyd Gaming Corp), Merger Agreement (Boyd Gaming Corp)
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Proxy Statement and Form 10; Stockholders Meeting.
(a) Subject to Section 5.10(b)As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Form S-4, the Proxy Statement and the Form 10. Each of Parent and the Company shall use all reasonable efforts to takehave the Form S-4, in which the Proxy Statement shall be included, declared effective under the Securities Act and the Form 10 declared effective under the Exchange Act as promptly as practicable after such filing. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to its stockholders as promptly as practicable after the Form S-4 is declared effective; provided, that the Company may elect to postpone the mailing of the Proxy Statement to a date that is no later than at least 20 business days prior to the date Parent informs the Company that the DevCo. Distribution is reasonably capable of being completed.
(b) Each of the Company and Parent covenants that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Proxy Statement will, at the date it is first mailed to the stockholders of the Company, or cause at the time of the Company Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be takenstated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement and the Form S-4 will comply as to form in all actions necessary material respects with the requirements of the Exchange Act and the Securities Act, as applicable. Notwithstanding the foregoing, (i) no representation or covenant is made by the Company with respect to consummate statements made or incorporated by reference based on information supplied in writing by Parent specifically for inclusion or incorporation by reference in the Form S-4 or Proxy Statement and (ii) no representation or covenant is made by Parent with respect to statements made or incorporated by reference based on information supplied in writing by the Company for inclusion or incorporation by reference in the Form S-4 or the Proxy Statement. If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be described in an amendment of, or a supplement, to the Form S-4 or the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and make other transactions contemplated hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4, the Proxy Statement and the Form 10, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval; provided, that the Company may elect to postpone the Company Stockholders Meeting to a date that is no later than 35 business days after the date of mailing of the Proxy Statement in accordance with Section 5.1(a). Subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated by this Agreementhereby (the "Company Recommendation"). Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to the first sentence of this Section 5.10(b)5.1(d) shall not be affected by the commencement, each party public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, this Agreement (i) and the Merger shall make all filings (if any) be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and give all notices (if any) required to be made and given by such party in connection with the Merger and nothing contained herein shall be deemed to relieve the other transactions contemplated by Company of such obligation unless this Agreement, Agreement has been terminated.
(iie) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver coordinate and cooperate with Parent with respect to Parent a copy the timing of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing PeriodStockholders Meeting.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 2 contracts
Sources: Merger Agreement (Cendant Corp), Merger Agreement (Cendant Corp)
Additional Agreements. 9.1 Preparation and Filing of the Registration Statements, the Proxy/Consent Solicitation Statement and Other Filings.
(a) Subject to Section 5.10(b), Parent and As soon as reasonably practicable after the Company shall use all reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by date of this Agreement. Without limiting , the generality of the foregoing, but subject to Section 5.10(b), parties shall cooperate fully with each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party other in connection with the Merger preparation of the Registration Statements, the Proxy/Consent Solicitation Statement and any other statements, reports or filings with the SEC or state or foreign securities regulators relating to the Transactions and any other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required materials to be obtained (pursuant disseminated by GM to any applicable Legal Requirement or Contract, or otherwise) by such party its stockholders in connection with the Merger Transactions (the foregoing being collectively referred to herein as the "Disclosure Documents"). Each of the Purchaser, GM and ▇▇▇▇▇▇, as and to the extent applicable, shall take all commercially reasonable actions in order to cause the Registration Statements and any other Disclosure Documents, including any and all amendments thereto, to be executed and filed with the SEC and submitted or filed with any applicable foreign and state securities law regulators in accordance with Applicable Law, in each case as soon as reasonably practicable after the date hereof. The parties shall promptly provide each other with copies of, and consult with each other and prepare written responses with respect to, any written comments received from the SEC and other state and foreign securities regulators with respect to the Registration Statements, the Proxy/Consent Solicitation Statement and any other Disclosure Documents and promptly advise each other of any oral comments received from the SEC and other state and foreign securities regulators, and, to the extent reasonably practicable under the circumstances, shall offer a reasonable opportunity to appropriate representatives of the other parties to participate in any telephone calls with the SEC or any state or foreign securities regulator the purpose of which is to discuss comments made by such regulators. The parties shall respond to any comments made by the SEC or any state or foreign securities regulator as soon as reasonably practicable following the receipt of such comments (it being understood and agreed that GM shall be expressly permitted to respond as it deems appropriate (subject to Purchaser's concurrence therewith, which concurrence shall not be unreasonably withheld or delayed) to any comments by the SEC or any state or foreign securities regulators relating to the formulation of the Requisite Vote Matters to be submitted by GM to its stockholders for approval). No amendment or supplement to any Registration Statement, the Proxy/Consent Solicitation Statement or any other Disclosure Document (or any related materials) will be filed or submitted to the SEC or any state or foreign regulator or publicly disseminated by any of the parties without the approval of the other parties, which shall not be unreasonably withheld or delayed. The parties shall use reasonable best efforts to cause the Registration Statements to be declared effective by the SEC and to obtain appropriate approvals from all other applicable foreign and state securities law regulators in accordance with Applicable Law, except for any such approvals the failure of which would not reasonably be expected to have a material adverse impact on the ability of the parties to consummate the transactions contemplated by this Agreement, and (iii) the Transaction Agreements. The parties shall use take all reasonable efforts to lift any restraint, injunction or other legal bar actions with respect to the Merger. The Company shall promptly deliver to Parent a copy preparation and delivery of each such filing madethe Registration Statements, each such notice given the Proxy/Consent Solicitation Statement and each such Consent obtained any other Disclosure Documents as required by the Company during the Pre-Closing PeriodSection 7.2 hereof.
(b) Notwithstanding anything The Purchaser shall, and shall cause Merger Sub to, promptly furnish ▇▇▇▇▇▇ and GM with all information concerning the Purchaser, Merger Sub and, to the contrary extent applicable and obtainable by the Purchaser or Merger Sub using reasonable best efforts, any Purchaser Affiliate, as may be requested for inclusion in the Registration Statements. GM and ▇▇▇▇▇▇ shall promptly furnish the Purchaser with all information concerning GM, ▇▇▇▇▇▇, any Subsidiary of ▇▇▇▇▇▇ (other than PanAmSat and HSSL) or, to the extent obtainable by GM or ▇▇▇▇▇▇ using reasonable best efforts, PanAmSat and HSSL, as may be requested for inclusion in the Registration Statements. If at any time prior to the Merger Effective Time, any information pertaining to the Purchaser or Merger Sub contained in this Agreementor omitted from the Registration Statements makes the statements contained therein false or misleading, Parent the Purchaser shall promptly inform ▇▇▇▇▇▇ and GM and shall promptly provide the information necessary to make the statements contained therein not have false or misleading. If at any obligation under this Agreement: (i) time prior to dispose the Merger Effective Time, any information pertaining to any Purchaser Affiliate contained in or cause any of its subsidiaries omitted from the Registration Statements, to dispose of any assets, or to commit to cause any the knowledge of the Acquired Corporations Purchaser, makes the statements contained therein false or misleading, the Purchaser shall promptly inform ▇▇▇▇▇▇ and GM and shall use reasonable best efforts to dispose promptly provide the information necessary to make the statements contained therein not false or misleading. If at any time prior to the Merger Effective Time, any information pertaining to GM, ▇▇▇▇▇▇ or any Subsidiary of ▇▇▇▇▇▇ (other than PanAmSat or HSSL) contained in or omitted from the Registration Statements makes the statements contained therein false or misleading, ▇▇▇▇▇▇ and GM shall promptly inform the Purchaser and shall promptly provide the information necessary to make the statements contained therein not false or misleading. If at any assets; time prior to the Merger Effective Time, any information pertaining to PanAmSat or HSSL contained in or omitted from the Registration Statements, to the Knowledge of ▇▇▇▇▇▇, makes the statements contained therein false or misleading, ▇▇▇▇▇▇ shall promptly inform GM and the Purchaser and shall use reasonable best efforts to promptly provide the information necessary to make the statements contained therein not false or misleading.
(iic) The Purchaser shall, and shall cause Merger Sub to, promptly furnish GM with all information concerning the Purchaser, Merger Sub and, to discontinue the extent obtainable by the Purchaser or cause Merger Sub using reasonable best efforts, any Purchaser Affiliate, as may be requested for inclusion in the Proxy/Consent Solicitation Statement or any other Disclosure Document. ▇▇▇▇▇▇ shall promptly furnish GM with all information concerning ▇▇▇▇▇▇, any Subsidiary of its subsidiaries ▇▇▇▇▇▇ (other than PanAmSat and HSSL) or, to discontinue offering the extent obtainable by ▇▇▇▇▇▇ using reasonable best efforts, PanAmSat and HSSL, as may be requested for inclusion in the Proxy/Consent Solicitation Statement or any productother Disclosure Document. GM and ▇▇▇▇▇▇ shall promptly furnish the Purchaser with all information concerning GM, ▇▇▇▇▇▇, any Subsidiary of ▇▇▇▇▇▇ (other than PanAmSat and HSSL) or, to the extent obtainable by GM or ▇▇▇▇▇▇ using reasonable best efforts, PanAmSat and HSSL, as may be requested for inclusion in the Proxy/Consent Solicitation Statement or any other Disclosure Document. If at any time prior to commit the Merger Effective Time, any information pertaining to cause the Purchaser or Merger Sub contained in or omitted from the Proxy/Consent Solicitation Statement or any other Disclosure Document makes the statements contained therein false or misleading, the Purchaser shall promptly inform GM and shall promptly provide the information necessary to make the statements contained therein not false or misleading. If at any time prior to the Merger Effective Time, any information pertaining to any Purchaser Affiliate contained in or omitted from the Proxy/Consent Solicitation Statement or any other Disclosure Document, to the knowledge of the Acquired Corporations Purchaser, makes the statements contained therein false or misleading, the Purchaser shall promptly inform GM and use reasonable best efforts to discontinue offering promptly provide the information necessary to make the statements contained therein not false or misleading. If at any product; time prior to the Merger Effective Time, any information pertaining to ▇▇▇▇▇▇ or any Subsidiary of ▇▇▇▇▇▇ (iiiother than PanAmSat or HSSL) contained in or omitted from the Proxy/Consent Solicitation Statement or any other Disclosure Document makes the statements contained therein false or misleading, ▇▇▇▇▇▇ shall promptly inform GM and the Purchaser and shall promptly provide the information necessary to license make the statements contained therein not false or otherwise make availablemisleading. If at any time prior to the Merger Effective Time, any information pertaining to PanAmSat or cause HSSL contained in or omitted from the Proxy/Consent Solicitation Statement or any of its subsidiaries to license or otherwise make availableother Disclosure Document, to the Knowledge of ▇▇▇▇▇▇, makes the statements contained therein false or misleading, ▇▇▇▇▇▇ shall promptly inform GM and the Purchaser and use reasonable best efforts to promptly provide the information necessary to make the statements contained therein not false or misleading. If at any Persontime prior to the Merger Effective Time, any technologyinformation pertaining to GM contained in or omitted from the Proxy/Consent Solicitation Statement or any other Disclosure Document makes the statements contained therein false or misleading, software or other Proprietary Asset, or to commit to cause any of GM shall promptly inform the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after Purchaser and shall promptly provide the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) information necessary to make the statements contained therein not false or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationsmisleading.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hughes Electronics Corp), Stock Purchase Agreement (News Corp LTD)
Additional Agreements. (a) Subject to Section 5.10(b), SECTION 6.1 Preparation of S-4 and the Proxy Statement. Parent and the Company shall use all reasonable efforts to takewill, or cause to be takenas promptly as practicable, all actions necessary to consummate jointly prepare and file with the Merger SEC the Proxy Statement in connection with the vote of the stockholders of the Company in respect of the Merger. Parent will, as promptly as practicable, prepare, following receipt of notification from the SEC that it has no further comments on the Proxy Statement, and make effective file with the SEC the S-4 in connection with the registration under the Securities Act of the shares of Parent Common Stock issuable upon conversion of the Shares and the other transactions contemplated by this Agreementhereby. Without limiting Parent and the generality Company will, and will cause their accountants and lawyers to, use their reasonable best efforts to have or cause the S-4 to be declared effective as promptly as practicable after filing with the SEC, including, causing their accountants to deliver necessary or required instruments such as opinions, consents and certificates, and will take any other action required or necessary to be taken under federal or state securities Laws or otherwise in connection with the registration process (other than qualifying to do business in any jurisdiction which it is not now so qualified or filing a general consent to service of process in any jurisdiction). The Company and Parent shall, as promptly as practicable after the receipt thereof, provide to the other party copies of any written comments and advise the other party of any oral comments, in respect of the foregoingProxy Statement or the S-4 received from the staff of the SEC. The Company will provide Parent with a reasonable opportunity to review and comment on any amendment or supplement to the Proxy Statement prior to filing with the SEC and will provide Parent with a copy of all such filings with the SEC. Parent will provide the Company with a reasonable opportunity to review and comment on any amendment or supplement on the S-4 prior to filing with SEC and will provide the Company with a copy of all such filings with the SEC. Parent will advise the Company, but subject to Section 5.10(b)promptly after it receives notice thereof, each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to for offering or sale in any applicable Legal Requirement or Contractjurisdiction, or otherwise) any request by such party in connection with the Merger or any SEC for amendment of the other transactions contemplated Form S-4 or comments thereon and responses thereto or requests by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the MergerSEC for additional information. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of will use its subsidiaries to dispose of any assets, or to commit reasonable best efforts to cause any of the Acquired Corporations Proxy Statement to dispose of any assets; (ii) be mailed to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of stockholders at the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationsearliest practicable date.
Appears in 2 contracts
Sources: Merger Agreement (Unitrode Corp), Merger Agreement (Texas Instruments Inc)
Additional Agreements. Section 6.01 Proxy Statement and Schedule 13E-3. As soon as practicable following the date of this Agreement, the Company, with the assistance of Parent and Merger Sub, shall prepare a proxy statement relating to the authorization and approval of this Agreement, the Plan of Merger and the Transactions by the shareholders of the Company including a notice convening the Shareholders’ Meeting in accordance with the Company’s memorandum and articles of association (a) Subject such proxy statement and notice, as amended or supplemented, being referred to Section 5.10(bherein as the “Proxy Statement”). Concurrently with the preparation of the Proxy Statement, the Company, Parent and the Company Merger Sub shall jointly prepare a Schedule 13E-3. The Company, Parent and Merger Sub shall use all their reasonable efforts to take, or cause the initial Schedule 13E-3 to be taken, all actions necessary to consummate filed with the Merger and make effective SEC (with the other transactions contemplated by initial Proxy Statement filed as an exhibit) as soon as practicable after the date of this Agreement. Without limiting the generality Each of the foregoingCompany, but subject Parent and Merger Sub shall use its reasonable best efforts so that the Schedule 13E-3 will comply as to Section 5.10(b)form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. Each of the Company, each Parent and Merger Sub shall use its reasonable best efforts to respond promptly to any comments of the SEC with respect to the Proxy Statement and Schedule 13E-3 and to resolve comments from the SEC. Each of the Company, Parent and Merger Sub shall furnish all information concerning such party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to the others as may be made and given by such party reasonably requested in connection with the Merger preparation, filing and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any distribution of the other transactions contemplated by this Agreement, Proxy Statement and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the MergerSchedule 13E-3. The Company shall promptly deliver notify Parent and Merger Sub upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and Schedule 13E-3 and shall provide Parent a copy with copies of each such all correspondence between it and its Representatives, on the one hand, and the SEC and its staff, on the other hand. Prior to filing madeor mailing the Proxy Statement and Schedule 13E-3 (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) shall provide Parent and Merger Sub a reasonable amount of time to dispose review and comment on such document or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; response and (ii) shall consider in good faith including in such document or response all comments reasonably proposed by Parent and Merger Sub. If at any time prior to discontinue the Shareholders’ Meeting, any information relating to the Company, Parent, Merger Sub or cause any of its subsidiaries their respective Affiliates, officers or directors, is discovered by the Company, Parent or Merger Sub which should be set forth in an amendment or supplement to discontinue offering the Proxy Statement and Schedule 13E-3 so that (x) the Proxy Statement and Schedule 13E-3 shall not contain any productuntrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, or to commit to cause any in light of the Acquired Corporations circumstances under which they are made, not misleading, and (y) the shareholders of the Company are able to discontinue offering any product; (iii) make an informed decision on whether or not to license attend the Shareholders’ Meeting and how to vote, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or otherwise make available, or cause any of its subsidiaries to license or otherwise make availablesupplement describing such information shall be filed with the SEC and, to any Personthe extent required by applicable Law, any technology, software or other Proprietary Asset, or disseminated to commit to cause any the shareholders of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompany.
Appears in 2 contracts
Sources: Merger Agreement (Country Style Cooking Restaurant Chain Co., Ltd.), Merger Agreement (Country Style Cooking Restaurant Chain Co., Ltd.)
Additional Agreements. SECTION 5.01. Preparation of the Form F-4 and the Proxy Statement; Stockholders Meeting.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Proxy Statement and Parent and the Company shall prepare and Parent shall file with the SEC the Form F-4, in which the Proxy Statement will be included as a prospectus. Parent shall use all reasonable efforts to takehave the Form F-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form F-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Shares in the Merger, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the Proxy Statement. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form F-4 will be made by Parent, or the Proxy Statement will be made by the Company, without providing the other party a reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form F-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Shares issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form F-4 or comments thereon and responses thereto or requests by the SEC for additional information. The Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form F-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company.
(b) The Company shall, as soon as practicable following the date of this Agreement, establish a record date (which will be as soon as practicable following the date of this Agreement) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") solely for the purpose of obtaining the Stockholder Approval. The Company shall cause the Stockholders Meeting to be taken, all actions necessary to consummate held as promptly as practicable after the Merger and make effective the other transactions contemplated by date of this Agreement. Subject to Section 4.02(b)(i), the Company shall, through its Board of Directors, recommend to its stockholders that they adopt this Agreement and shall include such recommendation in the Proxy Statement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party the Company agrees that its obligations pursuant to this Agreement Section 5.01(b) shall not be affected by (i) shall make all filings (if any) and give all notices (if any) required the commencement, public proposal, public disclosure or communication to be made and given by such party in connection with the Merger and the Company or any other transactions contemplated by this Agreement, person of any Takeover Proposal or (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to the withdrawal or modification by the Board of Directors of the Company or any applicable Legal Requirement committee thereof of such Board of Directors' or Contract, such committee's approval or otherwise) by such party in connection with recommendation of the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 2 contracts
Sources: Merger Agreement (Vivendi), Merger Agreement (Mp3 Com Inc)
Additional Agreements. (a) Subject to Section 5.10(b), Parent and the Company shall use all commercially reasonable efforts efforts: (i) to cause the conditions set forth in Article VI, in the case of Company, and in Article VII, in the case of Parent, to be satisfied as soon as practicable after the date hereof; and (ii) to otherwise take, or cause to be taken, all actions reasonably necessary to consummate the Merger and make effective the other transactions contemplated by this AgreementAgreement and each Transaction Document as soon as practicable after the date hereof. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all commercially reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The ; provided, that neither Company nor Parent nor any of their respective Affiliates shall promptly deliver be required to Parent a copy take any action, agree to any restriction or condition or enter into any agreement that relates to or affects in any manner any business or assets of each such filing madePerson or its Affiliates, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have including any obligation under this Agreement: (whether before or after the Closing Date): (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations Affiliates to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations their respective Affiliates to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries Affiliates to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary AssetIntellectual Property; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations Affiliates to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries Affiliates to make any commitment (to any Governmental Body Entity or otherwise) regarding its future operations operations. Each party shall promptly deliver to the other a copy of each filing made, each notice given and each consent obtained by such party in connection with the Merger.
(b) Parent and Company each shall use its commercially reasonable efforts to obtain the consents required to be obtained in connection with the Merger and the other transactions contemplated by this Agreement and the Transaction Documents from any Person or the future operations of any Governmental Entity as contemplated by Section 3.5 of the Acquired CorporationsCompany Disclosure Letter and Section 4.5 of the Parent Disclosure Letter, as applicable.
(c) Parent and Company each shall deliver all notices required to be sent under any Company Material Agreements and any Parent Material Agreements, as applicable, in connection with the Merger and the other transactions contemplated by this Agreement and the Transaction Documents to the counterparties thereto.
(d) At least 10 days prior to Closing, Parent shall file with the SEC an Information Statement on Schedule 14F-1 with respect to the change of a majority of members of the Board of Directors of Parent and the appointment of the additional directors as further described in Section 1.5; provided, that Company has supplied to Parent within a reasonable time prior thereto all information required to be included in the Schedule 14F-1 that relates to Company or its directors or officers.
Appears in 1 contract
Additional Agreements. Section 5.1 Preparation of the Form S-4 Proxy Statement; Shareholders Meetings.
(a) Subject Form S-4; Proxy Statement. As soon as practicable following the date of this Agreement, the Company and Parent shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use reasonable best efforts to Section 5.10(b), Parent and have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use all reasonable best efforts to take, or cause the Proxy Statement to be takenmailed to the Company's shareholders and Parent shall use all reasonable best efforts to cause the Proxy Statement to be mailed to Parent's shareholders, all actions necessary in each case, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action required to consummate be taken under any applicable foreign and state securities laws in connection with the issuance of Parent Common Stock in the Merger and make effective the Company shall furnish all information concerning the Company and the holders of the Company Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to, the Proxy Statement will be made by the Company or Parent, in each case, without providing the other transactions contemplated by this Agreementparty and its respective counsel the reasonable opportunity to review and comment thereon. Without limiting Parent will advise the generality Company, promptly after it receives notice thereof, of the foregoingtime when the Form S-4 has become effective or any supplement or amendment has been filed, but subject to Section 5.10(b)the issuance of any stop order, each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to for offering or sale in any applicable Legal Requirement or Contractjurisdiction, or otherwise) any request by such party in connection with the Merger SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of the other transactions contemplated by this Agreementtheir respective affiliates, and (iii) shall use all reasonable efforts to lift any restraintofficers or directors, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained should be discovered by the Company during the Pre-Closing Period.
(b) Notwithstanding anything or Parent which should be set forth in an amendment or supplement to the contrary contained in this AgreementForm S-4 or the Proxy Statement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause so that any of its subsidiaries such documents would not include any misstatement of a material fact or omit to dispose of state any assetsmaterial fact necessary to make the statements therein, or to commit to cause any in light of the Acquired Corporations circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information must be promptly filed with the SEC and, to dispose of any assets; (ii) the extent required by Law, disseminated to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any the shareholders of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompany.
Appears in 1 contract
Sources: Merger Agreement (Smucker J M Co)
Additional Agreements. SECTION 7.01. Preparation of the Proxy Statement, the Newco Form S-4 and the Newco Form 8-A; Company Stockholders Meeting.
(a) Subject As soon as practicable following the date of this Agreement, the Company shall (i) prepare the Proxy Statement, the Newco Form S-4 and the Newco Form 8-A and (ii) file the Proxy Statement, the Newco Form S-4 and the Newco Form 8-A with the SEC. The Proxy Statement will be included as a prospectus in the Newco Form S-4. Each of the Company and Parent shall use its reasonable best efforts to Section 5.10(b), have the Newco Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of the Company and Parent shall use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Newco Form S-4 is declared effective under the Securities Act. Each of Parent and the Company shall also take any action (other than qualifying to do business in any jurisdiction in which is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance and distribution of Newco Common Stock in the Merger. Parent shall furnish all information concerning Parent, the Transactions, the Transaction Agreements and the Commercial Agreements and shall provide all other assistance and cooperation as may be reasonably requested by the Company in connection with the preparation, filing and distribution of the Proxy Statement and the Newco Form S-4 and any other action described in this Section 7.01(a). The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement, the Newco Form S-4 or the Newco Form 8-A or for additional information and shall supply each other with copies of all correspondence between it or any of its Representatives, on the one hand, and the SEC or its staff on the other hand, with respect to the Proxy Statement, the Newco Form S-4, the Newco Form 8-A, the Merger, the other Transactions, the Transaction Agreements or the Commercial Agreements. Each of the Company and Parent shall use all its reasonable best efforts to takerespond as promptly as practicable to any such comments or requests of the SEC. If at any time prior to receipt of the Company Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Newco Form S-4 or cause the Newco Form 8-A, the Company shall promptly prepare and mail to be takenits stockholders such an amendment or supplement, all actions necessary and Parent shall cooperate in connection therewith. The Company shall not mail any Proxy Statement, the Newco Form S-4 or the Newco Form 8-A or any amendment or supplement thereto, to consummate which Parent reasonably objects in a timely manner.
(b) The Company shall, as promptly as practicable following the date of this Agreement (taking into account any delays reasonably required as a result of the occurrence of any event described in the last sentence of this clause (b)), duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") for the purpose of seeking the Company Stockholder Approval. The Company shall, through the Company Board, recommend to its stockholders that they give the Company Stockholder Approval, except to the extent that the Company Board shall have withdrawn or modified its approval or recommendation of this Agreement, the Restructuring or the Merger and make effective the other transactions contemplated as permitted by this AgreementSection 6.02(b). Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to the first sentence of this Section 5.10(b), each party to this Agreement 7.01(b) shall not be affected by (i) shall make all filings the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal or (if anyii) and give all notices (if any) required to be made and given the withdrawal or modification by such party in connection with the Merger and the other transactions contemplated by Company Board of its approval or recommendation of this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement the Restructuring or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. 5.1 Proxy Statement/Prospectus; Registration Statement. --------------------------------------------------
(a) Subject to Section 5.10(b)As promptly as practicable after the execution of this Agreement, Parent and the Company shall prepare and file with the SEC the Proxy Statement and the Registration Statement in which the Proxy Statement will be included as a prospectus. Each of Parent and Company shall use all its reasonable best efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make cause the Registration Statement and the Proxy Statement to comply as to form in all filings (if any) and give all notices (if any) required to be made and given by such party in connection material respects with the Merger Securities Act, the Exchange Act, and the other transactions contemplated by this Agreementrules and regulations thereunder, (ii) shall use all reasonable efforts respond promptly to obtain each Consent any comments of the SEC or its staff with respect to the Registration Statement, the Proxy Statement, or any other report, statement, or other document it may have filed with the SEC, (if anyiii) required cause the Registration Statement to be obtained declared effective under the Securities Act as soon thereafter as practicable, (pursuant iv) as soon as practicable after the Registration Statement shall have been declared effective, cause the Proxy Statement and forms of proxy to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with be mailed to the Merger or any of the other transactions contemplated by this AgreementCompany's stockholders, and (iiiv) shall use all reasonable efforts to lift notify the other party promptly of any restraint, injunction stop order or other legal bar threatened stop order of which it becomes aware with respect to the MergerRegistration Statement or similar proceeding with respect to the Proxy Statement. Each of Parent and the Company shall afford the other party a reasonable opportunity to review and comment upon the Registration Statement, the Proxy Statement, any amendment or supplement to either document, or any other document filed with the SEC prior to its filing. The Company Proxy Statement shall promptly deliver to Parent a copy include the fairness opinion of each such filing madeGeorge Witte, each such notice given and each such Consent obtained by Business Appraiser refe▇▇▇▇ ▇▇ ▇▇ ▇ection 2.21. The Proxy Statement shall also include the recommendation of the Board of Directors of the Company during in favor of the Pre-Closing PeriodMerger which shall not be withdrawn, modified, or withheld except in compliance with Section 5.4(a).
(b) Notwithstanding anything Each of Parent and the Company shall notify the other party promptly upon the receipt of any comments from the SEC or its staff or any other government official in connection with any filing made pursuant hereto and of any request by the SEC or its staff or any other government official for any amendment or supplement to the contrary contained in this AgreementRegistration Statement, Parent the Proxy Statement, or any other filing with the SEC or for additional information and shall not have any obligation under this Agreement: (i) provide to dispose the other party copies of all correspondence between such party or cause any of its subsidiaries representatives, on the one hand, and the SEC or its staff or any other government official, on the other hand, with respect to dispose of any assetsthe Registration Statement, the Proxy Statement, or to commit to cause any other such filing.
(c) Promptly after Parent or the Company shall notify the other party of the Acquired Corporations discovery of information required to dispose of any assets; (ii) be disclosed to discontinue the other party pursuant to Section 2.19 or cause any of its subsidiaries Section 3.19, as the case may be, the parties shall prepare and file appropriate amendments or supplements to discontinue offering any productthe Registration Statement and the Proxy Statement, as the case may be, and, to the extent required by law, disseminate such amendment or supplement to commit to cause any the stockholders of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompany.
Appears in 1 contract
Sources: Merger Agreement (Phazar Corp)
Additional Agreements. 5.1 Proxy Statement/Prospectus; Registration Statement. --------------------------------------------------
(a) Subject to Section 5.10(b)As promptly as practicable after the execution of this Agreement, Parent and the Company shall prepare and file with the SEC the Proxy Statement and the Registration Statement in which the Proxy Statement will be included as a prospectus. Each of Parent and Company shall use all its reasonable best efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make cause the Registration Statement and the Proxy Statement to comply as to form in all filings (if any) and give all notices (if any) required to be made and given by such party in connection material respects with the Merger Securities Act, the Exchange Act, and the other transactions contemplated by this Agreementrules and regulations thereunder, (ii) shall use all reasonable efforts respond promptly to obtain each Consent any comments of the SEC or its staff with respect to the Registration Statement, the Proxy Statement, or any other report, statement, or other document it may have filed with the SEC, (if anyiii) required cause the Registration Statement to be obtained declared effective under the Securities Act as soon thereafter as practicable, (pursuant iv) as soon as practicable after the Registration Statement shall have been declared effective, cause the Proxy Statement and forms of proxy to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with be mailed to the Merger or any of the other transactions contemplated by this AgreementCompany's stockholders, and (iiiv) shall use all reasonable efforts to lift notify the other party promptly of any restraint, injunction stop order or other legal bar threatened stop order of which it becomes aware with respect to the MergerRegistration Statement or similar proceeding with respect to the Proxy Statement. Each of Parent and the Company shall afford the other party a reasonable opportunity to review and comment upon the Registration Statement, the Proxy Statement, any amendment or supplement to either document, or any other document filed with the SEC prior to its filing. The Company Proxy Statement shall promptly deliver include the fairness opinion of George Witte, Business ▇▇▇▇▇▇▇▇▇ ▇▇ferred to Parent a copy in Section 2.21. The Proxy Statement shall also include the recommendation of each such filing made, each such notice given and each such Consent obtained by the Board of Directors of the Company during in favor of the Pre-Closing PeriodMerger which shall not be withdrawn, modified, or withheld except in compliance with Section 5.4(a).
(b) Notwithstanding anything Each of Parent and the Company shall notify the other party promptly upon the receipt of any comments from the SEC or its staff or any other government official in connection with any filing made pursuant hereto and of any request by the SEC or its staff or any other government official for any amendment or supplement to the contrary contained in this AgreementRegistration Statement, Parent the Proxy Statement, or any other filing with the SEC or for additional information and shall not have any obligation under this Agreement: (i) provide to dispose the other party copies of all correspondence between such party or cause any of its subsidiaries representatives, on the one hand, and the SEC or its staff or any other government official, on the other hand, with respect to dispose of any assetsthe Registration Statement, the Proxy Statement, or to commit to cause any other such filing.
(c) Promptly after Parent or the Company shall notify the other party of the Acquired Corporations discovery of information required to dispose of any assets; (ii) be disclosed to discontinue the other party pursuant to Section 2.19 or cause any of its subsidiaries Section 3.19, as the case may be, the parties shall prepare and file appropriate amendments or supplements to discontinue offering any productthe Registration Statement and the Proxy Statement, as the case may be, and, to the extent required by law, disseminate such amendment or supplement to commit to cause any the stockholders of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompany.
Appears in 1 contract
Sources: Merger Agreement (Ydi Wireless Inc)
Additional Agreements. SECTION 6.01. PREPARATION OF THE PARENT FORM ▇-▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇-▇, THE FORM 8-A AND THE PARENT PROXY STATEMENT; STOCKHOLDERS' MEETING.
(a) Subject As soon as practicable following the date of this Agreement, the Company and Parent shall prepare and the Company shall file with the SEC the Proxy Statement, the Newco Form S-4 and the Form 8-A and Parent shall prepare and file with the SEC the Parent Form S-4. The Proxy Statement will be included as a prospectus in the Newco Form S-4 and the Parent Form S-4. Each of the Company and Parent shall use its commercially reasonable efforts to Section 5.10(b), have the Newco Form S-4 and the Parent Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its commercially reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Newco Form S-4 and the Parent Form S-4 are declared effective under the Securities Act. Each of Parent and the Company shall use also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with, in the case of Parent, the issuance of Parent Common Stock in the Merger and, in the case of the Company, the issuance of Newco Common Stock in the Split-Off. The Company shall furnish all reasonable efforts to takeinformation concerning the Company and the holders of Company Common Stock, and Parent shall furnish all information concerning Parent, as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the Proxy Statement, the Newco Form S-4 and the Parent Form S-4. No filing of, or cause amendment or supplement to, the Parent S-4 will be made by Parent, and no filing of, or amendment or supplement to, the ▇▇▇▇▇ ▇-▇ or the Proxy Statement will be made by the Company, in each case without providing the other party a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, should be takendiscovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Parent Form S-4, all actions the Newco Form S-4 or the Proxy Statement, so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to consummate make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement, the Newco Form S-4, the Form 8-A or the Parent Form S-4 or for additional information and shall supply each other with copies of all correspondence between it or any of its Representatives, on the one hand, and the SEC or its staff on the other hand, with respect to the Proxy Statement, the Newco Form S-4, the Parent Form S-4, the Form 8-A, the Merger and make effective or the other transactions contemplated by the Transaction Agreements.
(b) The Company shall, as soon as practicable following the date of this Agreement (taking into account any delays reasonably required as a result of the occurrence of any event described in the last sentence of this clause (b)), establish a record date following the date of this Agreement for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders' Meeting") solely for the purpose of obtaining the Stockholder Approval. Subject to Section 5.02(b), the Company shall, through its Board of Directors, recommend to its stockholders approval and adoption of this Agreement, the Merger and the other transactions contemplated hereby (and, if required, the other Transaction Agreements and the transactions contemplated thereby) and shall include such recommendation in the Proxy Statement. Without limiting the generality of the foregoing, but subject the Company's obligations pursuant to the first sentence of this Section 5.10(b), each party to this Agreement 6.01(b) shall not be affected by (i) shall make all filings (if any) and give all notices (if any) required the commencement, public proposal, public disclosure or communication to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, Company of any Takeover Proposal or (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to the withdrawal or modification by the Board of Directors of the Company or any applicable Legal Requirement committee thereof of such Board of Directors' or Contract, such committee's approval or otherwise) by such party in connection with recommendation of the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Sources: Agreement and Plan of Split Off and Merger (Inverness Medical Technology Inc/De)
Additional Agreements. Section 8.01 Proxy Statement and Schedule 13E-3. As promptly as reasonably practicable following the date hereof, the Company, with the assistance of Parent and Merger Sub, shall prepare and, promptly after the Go Shop Period End Date (or earlier, if the Special Committee so directs), shall cause to be filed with the SEC a proxy statement (such proxy statement, as amended or supplemented, being referred to herein as the “Proxy Statement”) and a Rule 13e-3 transaction statement on Schedule 13E-3 (such Schedule 13E-3, as amended or supplemented, being referred to herein as the “Schedule 13E-3”), in each case relating to the authorization and adoption by the Stockholders of this Agreement and the Transactions, including the Merger. Each of the Company, Parent and Merger Sub shall use its reasonable best efforts so that the Proxy Statement and the Schedule 13E-3 will comply in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. The Company, with the assistance of, and after consultation with, Parent and Merger Sub, shall use its reasonable best efforts to: (a) Subject respond, as promptly as reasonably practicable, to Section 5.10(b)any comments received from the staff of the SEC with respect to such filings of the Proxy Statement and the Schedule 13E-3; (b) prepare and file, as promptly as reasonably practicable, any amendments or supplements necessary to be filed in response to any such comments or as required by Law; (c) have cleared by the staff of the SEC the Proxy Statement and the Schedule 13E-3; and (d) to the extent required by applicable Law, as promptly as reasonably practicable, prepare, file and distribute to the Stockholders any supplement or amendment to the Proxy Statement or the Schedule 13E-3 if any event shall occur which requires such action at any time prior to the Stockholders’ Meeting. Each of the Company, Parent and the Company Merger Sub shall use promptly furnish all reasonable efforts information concerning such party to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to parties as may be made and given by such party reasonably requested in connection with the Merger preparation, filing and distribution of the Proxy Statement and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the MergerSchedule 13E-3. The Company shall promptly deliver notify Parent upon the receipt of any comments from the SEC or its staff with respect to Parent a copy the Proxy Statement or the Schedule 13E-3 and of each such filing made, each such notice given and each such Consent obtained any requests by the Company during the Pre-Closing Period.
(b) Notwithstanding anything SEC or its staff for any amendments or supplements to the contrary contained in this AgreementProxy Statement or the Schedule 13E-3 and shall promptly provide Parent with copies of all written correspondence between it and its Representatives, on the one hand, and the SEC and its staff, on the other hand. Parent shall not have promptly provide the Company with copies of any obligation under this Agreement: requests by the SEC or its staff for any amendments or supplements to the Schedule 13E-3 and with copies of all written correspondence between it and its Representatives, on the one hand, and the SEC and its staff, on the other hand. Prior to filing or mailing of the Proxy Statement and the Schedule 13E-3 (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall (i) provide Parent a reasonable opportunity to dispose review and comment on such document or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; response and (ii) consider in good faith all comments proposed by Parent and its Representatives. If at any time prior to discontinue the Stockholders’ Meeting, any information relating to the Company, Parent, Merger Sub or cause any of its subsidiaries their respective Affiliates, officers or directors is discovered by the Company, Merger Sub or Parent which should be set forth in an amendment or supplement to discontinue offering the Proxy Statement and/or the Schedule 13E-3 so that the Proxy Statement and/or the Schedule 13E-3 shall not contain any productuntrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, or to commit to cause any in light of the Acquired Corporations to discontinue offering any product; (iii) to license circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or otherwise make available, or cause any of its subsidiaries to license or otherwise make availablesupplement describing such information shall be filed with the SEC and, to any Personthe extent required by applicable Law, any technology, software or other Proprietary Asset, or disseminated to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsStockholders.
Appears in 1 contract
Sources: Merger Agreement (Stonemor Inc.)
Additional Agreements. 5.1 Preparation of Form S-4 and Proxy Statement/Prospectus; Company Stockholders Meeting.
(a) Subject As promptly as practicable following the date hereof, Parent and Company shall prepare and file with the SEC preliminary proxy materials which shall constitute the Proxy Statement/Prospectus (such proxy statement/prospectus, and any amendments or supplements thereto, the "Proxy Statement/Prospectus") and Parent shall prepare and file with the SEC a registration statement on Form S-4 with respect to Section 5.10(bthe issuance of Parent Common Stock in the Merger (the "Form S-4"), . The Proxy Statement/Prospectus will be included in the Form S-4 as Parent's prospectus. The Form S-4 and the Proxy Statement/Prospectus shall comply as to form in all material respects with the applicable provisions of the Securities Act and the Exchange Act. Each of Parent and the Company shall use all its reasonable best efforts to take, or cause have the Form S-4 declared effective under the Securities Act as promptly as practicable after filing with the SEC and to be taken, all actions keep the Form S-4 effective as long as is necessary to consummate the Merger Merger. Parent and make effective the Company shall, as promptly as practicable after receipt thereof, provide copies of any written comments received from the SEC with respect to the Proxy Statement/ Prospectus to the other transactions contemplated party and advise the other party of any oral comments with respect to the Proxy Statement/Prospectus received from the SEC. The Company shall use its reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities laws in connection with the Share Issuance and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action. Each of the Company and Parent will inform the other party, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Form S-4 or the Proxy Statement/Prospectus, as the case may be, or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement/Prospectus, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company. Parent agrees that none of the information supplied or to be supplied by Parent for inclusion or incorporation by reference in the Proxy Statement/Prospectus and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Company Stockholders Meeting, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or be false or misleading with respect to any material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading. The Company agrees that none of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Proxy Statement/Prospectus and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Company Stockholders Meeting, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or be false or misleading with respect to any material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of circumstances under which they are made, not misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting which has become false or misleading. For purposes of the foregoing, it is understood and agreed that information concerning or related to Parent will be deemed to have been supplied by Parent and information concerning or related to the Company and the Company Stockholders Meeting shall be deemed to have been supplied by the Company. Each of the Company and Parent will provide Parent or the Company, respectively, with a reasonable opportunity to review and comment on any amendment or supplement to the Proxy Statement/Prospectus and the Form S-4, respectively, prior to filing such with the SEC, and will provide the other party with a reasonable number of copies of all such filings made with the SEC. No amendment or supplement to the information supplied by Parent or the Company for inclusion in the Proxy Statement/Prospectus shall be made without the approval of Parent or the Company, which approval shall not be unreasonably withheld or delayed.
(b) The Company shall, as promptly as practicable following the execution of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") for the purpose of obtaining the Required Company Vote with respect to the adoption of this Agreement (provided that it is understood that it is the intention of the Company that the Company Stockholder Meeting will, to the extent reasonably practicable, be scheduled such that it shall occur reasonably proximate to the Effective Time), and shall take all lawful action to solicit the adoption of this Agreement by the Required Company Vote, and subject to Section 5.4 and without limiting its rights under Section 7.1(f), the Board of Directors of the Company shall recommend adoption of this Agreement by the stockholders of the Company. Without limiting the generality of the foregoing, but subject foregoing and without limiting its rights pursuant to Section 5.10(bSections 5.4 and 7.1(f), each party the Company agrees that its obligations pursuant to the first sentence of this Agreement (iSection 5.1(b) shall make all filings (if any) and give all notices (if any) required to not be made and given affected by such party in connection with the Merger and the other transactions contemplated by this Agreementcommencement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement public proposal, public disclosure or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar communication to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; Acquisition Proposal (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Dateas defined in Section 5.4(b), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations).
Appears in 1 contract
Additional Agreements. Section 6.01. (a) Preparation of the Proxy Statement and Parent’s Stockholders Meeting. Parent shall use its reasonable best efforts to call, hold and convene a meeting of its stockholders to vote on the approval of the Note Satisfaction as soon as possible after the date hereof but in any event not later than the day before the Note Maturity Date (the “Parent Stockholders Meeting”). Subject to Section 5.10(b6.01(b), the board of directors of Parent shall recommend to the Parent stockholders that the Parent stockholders vote to approve the Note Satisfaction (the “Recommendation”) and shall include such Recommendation in the Proxy Statement. In connection with the Parents’ Stockholders Meeting, Parent shall prepare and file with the SEC as soon as reasonably practicable, but in any event, not later than 45 days after the date hereof the Proxy Statement in preliminary form, and Parent shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Parent shall use its reasonable best efforts to prepare and file with the SEC the definitive Proxy Statement and to cause the definitive Proxy Statement to be mailed to Parent’s stockholders as promptly as practicable after the filing of the definitive Proxy Statement with the SEC. Parent shall take any action required to be taken under any applicable state securities Laws in connection with the Note Satisfaction. Parent shall notify the Stockholders Representative promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply the Stockholders Representative with copies of all correspondence between Parent or any of its representatives, on the one hand, and the Company shall use all reasonable efforts to takeSEC or its staff, or cause to be taken, all actions necessary to consummate the Merger and make effective on the other transactions contemplated by this Agreementhand, with respect to the Proxy Statement. Without limiting Prior to filing or mailing the generality preliminary or definitive Proxy Statement (or any amendment or supplement thereto) or responding to the comments of the foregoingSEC with respect thereto, but subject to Section 5.10(b), each party to this Agreement Parent (i) shall make provide the Stockholders Representative a reasonable opportunity to review such document or response and (ii) shall consider in good faith comments proposed by the Stockholders Representative on such document or response. The Stockholders Representative shall furnish all filings (if any) and give all notices (if any) required to information as may reasonably be made and given requested by such party Parent in connection with the Merger preparation, filing and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any distribution of the other transactions contemplated by this Agreement, Proxy Statement. This Section 6.01(a) and (iiiSection 6.01(b) below shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given apply from and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsEffective Time.
Appears in 1 contract
Sources: Merger Agreement (Authentec Inc)
Additional Agreements. Section 7.1 PREPARATION OF THE FORM S-4 AND THE JOINT PROXY STATEMENT/PROSPECTUS; STOCKHOLDERS MEETINGS.
(a) Subject As promptly as practicable following the date hereof, Parent and the Company shall jointly prepare and file with the SEC mutually acceptable preliminary proxy materials and any amendments or supplements thereof which shall constitute the joint proxy statement/prospectus relating to Section 5.10(bthe matters to be submitted to the holders of the Company's Common Stock at the Company's Stockholders Meeting and the holders of the Parent Common Stock at the Parent's Stockholders Meeting (such proxy statement/prospectus, and any amendments or supplements thereto (the "JOINT PROXY STATEMENT/PROSPECTUS"), and Parent shall prepare and file with the SEC the Registration Statement on Form S-4 with respect to (i) the issuance of Parent Common Stock in the Merger (the "FORM S-4") in which the Joint Proxy Statement/Prospectus will be included as a prospectus and (ii) the amendments to its Certificate of Incorporation referred to in SECTION 3.1(A). The Form S-4 and the Joint Proxy Statement/Prospectus shall comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act. Each of Parent and the Company shall use all reasonable efforts to take, or cause have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective under the Securities Act as promptly as practicable after filing it with the SEC and to be taken, all actions keep the Form S-4 effective as long as is necessary to consummate the Merger Merger. The parties shall promptly provide copies to each other, consult with each other and make effective jointly prepare written responses with respect to any written comments received from the SEC with respect to the Form S-4 and the Joint Proxy Statement/Prospectus and promptly advise the other transactions contemplated party of any oral comments received from the SEC. The parties shall cooperate and provide the other with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and Form S-4 prior to filing such with the SEC and will provide each other with a copy of all such filings made with the SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation of reference) to the Joint Proxy Statement/Prospectus or Form S-4 shall be made without the approval of both parties, which approval shall not be unreasonably withheld or delayed. Parent agrees that none of the information supplied or to be supplied by Parent for inclusion or incorporation by reference in the Joint Proxy Statement/Prospectus and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Company Stockholders Meeting or the Parent Stockholders Meeting, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees that none of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Joint Proxy Statement/Prospectus and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Company Stockholders Meeting or the Parent Stockholders Meeting, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. For purposes of the foregoing, it is understood and agreed that information concerning or related to Parent, its Subsidiaries and the Parent Stockholders Meeting will be deemed to have been supplied by Parent and information concerning or related to the Company, its Subsidiaries and the Company Stockholders Meeting shall be deemed to have been supplied by the Company.
(b) The Company shall, as promptly as practicable following the execution of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "COMPANY STOCKHOLDERS MEETING") for the purpose of obtaining the required Company Stockholder Approval. The Company shall use its reasonable efforts to obtain the Company Stockholder Approval and the Board of Directors of the Company shall recommend adoption of this Agreement by the stockholders of the Company. Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to Section 5.10(b), each party to the first two sentences of this Agreement SECTION 7.1(B) shall not be affected by (i) shall make all filings the commencement, public proposal, public disclosure or communication to the Company or any other person of any Company Acquisition Proposal or Company Superior Proposal or (if anyii) and give all notices (if any) required to be made and given the withdrawal or modification by the Board of Directors of the Company or any committee thereof of such party in connection with Board's or committee's approval or recommendation of the Merger or this Agreement.
(c) Parent shall, as promptly as practicable following the execution of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "PARENT STOCKHOLDERS MEETING") for the purpose of obtaining the required Parent Stockholder Approval. Parent shall use its reasonable efforts to obtain the Parent Stockholder Approval and the Board of Directors of Parent shall recommend approval by the stockholders of Parent of matters constituting the Parent Stockholder Approval. Without limiting the generality of the foregoing, Parent agrees that its obligations pursuant to the first two sentences of this SECTION 7.1(C) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to Parent or any other person of any Parent Acquisition Proposal or Parent Superior Proposal or (ii) the withdrawal or modification by the Board of Directors of Parent or any committee thereof of such Board's or committee's approval or recommendation of the Merger or this Agreement.
(d) Merger Sub shall, immediately following execution of this Agreement, submit this Agreement to Parent, as the sole stockholder of Merger Sub, for adoption and approval. Upon such submission, Parent, as sole stockholder of Merger Sub, shall adopt this Agreement and approve the transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) Agreement by such party unanimous written consent in connection lieu of a meeting in accordance with the Merger or any requirements of the other transactions contemplated by this Agreement, DGCL and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy Certificate of each such filing made, each such notice given Incorporation and each such Consent obtained by the Company during the Pre-Closing PeriodBylaws of Merger Sub.
(be) Notwithstanding anything The Company Stockholders Meeting and the Parent Stockholders Meeting shall take place on the same date to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationsextent practicable.
Appears in 1 contract
Additional Agreements. 5.1 Proxy Statement/Prospectus; Registration Statement; Other Filings; Board Recommendations.
(a) Subject to Section 5.10(b)As promptly as practicable after the execution of this Agreement, Company and Parent will prepare, and file with the SEC, the Proxy Statement/Prospectus, and Parent will prepare and file with the SEC the S-4 in which the Proxy Statement/Prospectus will be included as a prospectus. Each of Parent and the Company shall provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Proxy Statement/Prospectus and the S-4, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Proxy Statement/Prospectus and the S-4. Each of Company and Parent will respond to any comments of the SEC, and will use all its respective commercially reasonable efforts to takehave the S-4 declared effective under the Securities Act as promptly as practicable after such filing, or and Company will cause the Proxy Statement/Prospectus to be takenmailed to its shareholders at the earliest practicable time after the S-4 is declared effective by the SEC. As promptly as practicable after the date of this Agreement, all actions necessary each of Company and Parent will prepare and file any other filings required to be filed by it under the Exchange Act, the Securities Act or any other Federal, foreign or Blue Sky or related securities laws in order to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (ithe "OTHER FILINGS"). Each of Company and Parent will notify the other promptly upon the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the S-4, the Proxy Statement/Prospectus and will supply the other with copies of all correspondence between such party or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the S-4, the Proxy Statement/Prospectus or the Merger. Each of Company and Parent will cause all documents that it is responsible for filing with the SEC under this Section 5.1(a) shall make to comply in all filings (if any) material respects with all applicable requirements of law and give all notices (if any) the rules and regulations promulgated thereunder. Whenever any event occurs which is required to be made set forth in an amendment or supplement to the Proxy Statement/Prospectus or the S-4, Company or Parent, as the case may be, will promptly inform the other of such occurrence and given by such party cooperate in connection filing with the Merger and the other transactions contemplated by this AgreementSEC or its staff, (ii) shall use all reasonable efforts and/or mailing to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement shareholders of Company, such amendment or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Periodsupplement.
(b) Notwithstanding anything Subject to Section 5.2(c) below, the contrary contained Proxy Statement/Prospectus will include the recommendation of the Board of Directors of Company in favor of approval of this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any the Agreement of its subsidiaries to dispose of any assets, or to commit to cause any Merger and approval of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsMerger.
Appears in 1 contract
Additional Agreements. 5.1 Preparation of the Proxy Statement and Schedule 13E-3.
(a) Subject The Company shall as promptly as practicable prepare and file a proxy or information statement relating to Section 5.10(b)the Stockholders' Meeting (together with all amendments, Parent supplements and exhibits thereto, the "Proxy Statement") with the SEC and will use its best efforts to respond to the comments of the SEC and to cause the Proxy Statement to be mailed to the Company's stockholders at the earliest practical time. The Company will notify Phoenix promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Phoenix with copies of all correspondence between the Company shall use all reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of its representatives, on the one hand, and the SEC or its staff, on the other transactions contemplated by this Agreementhand, and (iii) shall use all reasonable efforts with respect to lift any restraint, injunction the Proxy Statement or other legal bar to the Merger. If at any time prior to the Stockholders'"Meeting there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company will promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall promptly deliver will not mail any Proxy Statement, or any amendment or supplement thereto, to Parent a copy which Phoenix reasonably objects. The Company hereby consents to the inclusion in the Proxy Statement of each such filing madethe recommendation of the Board described in Section 5.2, each such notice given subject to any modification, amendment or withdrawal thereof, and each such Consent obtained by represents that the Company during Independent Advisor has, subject to the Pre-Closing Periodterms of its engagement letter with the Company, consented to the inclusion of references to its opinion in the Proxy Statement.
(b) Notwithstanding anything The Company, Phoenix, and Merger Sub shall together prepare and file a Transaction Statement on Schedule 13E-3 (together with all amendments and exhibits thereto, the "Schedule 13E-3") under the Exchange Act. Each of ▇▇▇▇▇▇▇▇▇, Phoenix and Merger Sub shall furnish all information concerning it, its affiliates and the holders of its capital stock required to be included in the Schedule 13E-3 and, after consultation with each other, shall respond promptly to any comments made by the SEC with respect to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsSchedule 13E-3.
Appears in 1 contract
Additional Agreements. SECTION 5.1 PREPARATION OF THE FORM S-4, JOINT PROXY STATEMENT; STOCKHOLDERS MEETINGS.
(a) Subject to Section 5.10(b)As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare, and Parent shall file with the SEC, the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to takehave the Form S-4 declared effective under the Securities Act, or cause and for the Joint Proxy Statement to be takencleared under the Exchange Act, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreementas promptly as practicable after such filing. Without limiting any other provision hereinabove contained, the generality of Form S-4 and the foregoingJoint Proxy Statement will contain, but subject to Section 5.10(b)without limitation, each party to this Agreement such information and disclosure reasonably requested by either Parent or the Company so that (i) the Form S-4 conforms in both form and substance to the requirements of the Securities Act, and (ii) the Joint Proxy Statement conforms in both form and substance to the requirements of the Exchange Act. The Company and Parent shall make all filings each use reasonable best efforts to cause the Joint Proxy Statement to be mailed to holders of Company Common Stock and Parent Common Stock, respectively, as promptly as practicable after the Form S-4 is declared effective.
(if anyb) and give all notices If at any time prior to the Effective Time there shall occur (if anyi) any event with respect to the Company or any of its Subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Joint Proxy Statement or (ii) any event with respect to Parent or its Subsidiaries, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Joint Proxy Statement, in either case, which event is required to be made described in an amendment of, or a supplement to, the Form S-4 or the Joint Proxy Statement, such event shall be so described, and given such amendment or supplement shall be promptly filed with the SEC and, as required by such party law, disseminated to the stockholders of Company and Parent.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and the other transactions contemplated by hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Joint Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Joint Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) Each of the Company and Parent shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting and Parent Stockholders Meeting, respectively, in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and Parent Stockholder Approval, respectively, and each shall coordinate with the other regarding the timing of such meetings.
(e) Subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of and the other transactions contemplated hereby (the "COMPANY RECOMMENDATION"); provided, however, that the Company's Board of Directors shall not be required to make such Company Recommendation to the extent that it is permitted to effect a Change in the Company Recommendation pursuant to Section 4.3. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(e) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation, provided, however, that if the Board of Directors of the Company shall have effected a Change in the Company Recommendation in accordance with this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar then in submitting this Agreement to the Merger. The Company shall promptly deliver to Parent a copy Company's stockholders, the Board of each such filing made, each such notice given and each such Consent obtained by Directors of the Company during may submit this Agreement to the Pre-Closing PeriodCompany's stockholders without recommendation (although the resolutions adopting this Agreement and the Plan of Merger as of the date hereof may not be rescinded or amended), in which event the Board of Directors of the Company may communicate the basis for its lack of a recommendation to the Company's stockholders in the Joint Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law.
(bf) Notwithstanding anything The Board of Directors of Parent shall use its reasonable best efforts to obtain the contrary contained in Parent Stockholder Approval and to recommend to Parent's stockholders the approval and adoption of this Agreement, Parent shall not have any obligation under this Agreement: the Merger and the other transactions contemplated hereby (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date"PARENT RECOMMENDATION"), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. Section 6.01. Preparation of the Proxy Statement and Schedule 13E-3; Company Shareholders Meeting.
(a) Subject to Section 5.10(b)As reasonably promptly as practicable following the date of this Agreement, Parent and the Company shall use all reasonable efforts to take, or prepare and cause to be takenfiled with the SEC a proxy statement to be sent to the Company’s shareholders relating to the Company Shareholders Meeting (together with any amendments or supplements thereto, the “Proxy Statement”). Parent shall furnish all actions necessary information concerning Parent and its Affiliates to consummate the Merger Company, and make effective provide such other assistance, as may be reasonably requested in connection with the preparation, filing and distribution of the Proxy Statement, and the Proxy Statement shall include all information reasonably requested by the Company to be included therein. The Company shall reasonably promptly notify Parent upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC, on the other transactions contemplated by this Agreementhand. Without limiting The Company shall use its reasonable best efforts to respond as reasonably promptly as practicable to any comments from the generality of SEC with respect to the Proxy Statement, and Parent will cooperate in connection therewith. Notwithstanding the foregoing, but subject prior to Section 5.10(b)filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each party to this Agreement the Company (i) shall make all filings provide Parent an opportunity to review and comment on the Proxy Statement or response (if anyincluding the proposed final version of the Proxy Statement or response) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use consider in good faith all reasonable efforts comments proposed by Parent.
(b) The Company and Parent shall cooperate to obtain each Consent (if anyi) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection concurrently with the Merger or any preparation and filing of the other Proxy Statement, jointly prepare and file with the SEC a Rule 13E-3 Transaction Statement on Schedule 13E-3 (together with any amendments thereof or supplements thereto, the “Schedule 13E-3”) relating to the transactions contemplated by this Agreement, and furnish to each other all information concerning such party as may be reasonably requested in connection with the preparation of the Schedule 13E-3, (ii) respond as reasonably promptly as practicable to any comments received from the SEC with respect to the Schedule 13E-3 and will consult with each other prior to providing such response, (iii) shall as promptly as reasonably practicable, prepare and file any amendments or supplements necessary to be filed in response to any such comments, (iv) use all reasonable best efforts to lift have cleared by the staff of the SEC the Schedule 13E-3 and (v) to the extent required by applicable Law, as promptly as reasonably practicable prepare and file any restraintsupplement or amendment to the Schedule 13E-3. Each party shall reasonably promptly notify the other parties upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Schedule 13E-3 and shall provide the other parties with copies of all correspondence between such party and its Representatives, injunction on the one hand, and the SEC, on the other hand.
(c) If prior to the Effective Time any change occurs with respect to information supplied by Parent or its Affiliates for inclusion in the Proxy Statement or the Schedule 13E-3 which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Schedule 13E-3, Parent shall reasonably promptly notify the Company of such change, and Parent and the Company shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement or the Schedule 13E-3, as applicable, and as required by Law, in disseminating the information contained in such amendment or supplement to the Company’s shareholders. Nothing in this Section 6.01(c) shall limit the obligations of any party under Section 6.01(a).
(d) If prior to the Effective Time any event occurs with respect to the Company or any Company Subsidiary, or any change occurs with respect to other legal bar information supplied by the Company for inclusion in the Proxy Statement or the Schedule 13E-3, which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Schedule 13E-3, the Company shall reasonably promptly notify Parent of such event, and the Company shall as reasonably promptly as practicable file any necessary amendment or supplement to the Proxy Statement or the Schedule 13E-3, as applicable, with the SEC and, as required by Law, disseminate the information contained in such amendment or supplement to the Company’s shareholders. Nothing in this Section 6.01(d) shall limit the obligations of any party under Section 6.01(a).
(e) The Company shall, as promptly as reasonably practicable after the SEC confirms it has no further comments on the Proxy Statement and the Schedule 13E-3, duly call, give notice of, convene and hold the Company Shareholders Meeting for the purpose of (i) seeking the Company Shareholder Approval; and (ii) in accordance with Section 14A of the Exchange Act and the applicable SEC rules issued thereunder, seeking advisory approval of a proposal to the Company’s shareholders for a non-binding, advisory vote to approve certain compensation that may become payable to the Company’s named executive officers in connection with the completion of the Merger. The Company shall promptly deliver use its reasonable best efforts to Parent a copy (i) cause the Proxy Statement to be mailed to the Company’s shareholders; and (ii) subject to Section 5.04(d), solicit the Company Shareholder Approval. The Company shall, through the Company Board, recommend to its shareholders that they give the Company Shareholder Approval (the “Company Recommendation”) and shall include such recommendation in the Proxy Statement and the Schedule 13E-3, in each case, except to the extent that the Company Board shall have made an Adverse Recommendation Change as permitted by Section 5.04(d). The Company agrees that, unless this Agreement is terminated in accordance with its terms prior thereto, its obligations to hold the Company Shareholders Meeting pursuant to this Section 6.01 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of each such filing madeany Alternative Proposal, each such notice given and each such Consent obtained by the making of any Adverse Recommendation Change by the Company during Board or by any other development; provided, however, that if the Pre-Closing Periodpublic announcement of an Adverse Recommendation Change or the delivery of notice by the Company to Parent pursuant to Section 5.04(d)(i) occurs less than 10 Business Days prior to the Company Shareholders Meeting, the Company shall be entitled to postpone the Company Shareholders Meeting to a date not more than 10 Business Days after the date such Company Shareholders Meeting had previously been scheduled (but in no event to a date after the date that is five Business Days before the End Date).
(bf) Notwithstanding anything The Company may, with Parent’s consent (such consent not to be unreasonably withheld, conditioned or delayed), adjourn, recess, reconvene or postpone the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: Company Shareholders Meeting if (x) the Company reasonably believes that (i) such adjournment, recess, reconvening or postponement is necessary to dispose ensure that any required supplement or cause any amendment to the Proxy Statement or the Schedule 13E-3 is provided to the holders of its subsidiaries to dispose Company Shares within a reasonable amount of any assets, or to commit to cause any time in advance of the Acquired Corporations to dispose of any assets; Company Shareholders Meeting, (ii) after consultation with Parent, as of the time for which the Company Shareholders Meeting is then scheduled (as set forth in the Proxy Statement), (A) there will be an insufficient number of Company Shares present (either in person or by proxy) to discontinue constitute a quorum necessary to conduct the business of the Company Shareholders Meeting or cause any (B) there will be an insufficient number of its subsidiaries proxies to discontinue offering any productobtain the Company Shareholder Approval, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license such adjournment, recess, reconvening or otherwise make availablepostponement is required by Law, or cause any of its subsidiaries (y) Parent reasonably requests such adjournment, recess, reconvening or postponement. The Company shall keep Parent updated with reasonable frequency with respect to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationsproxy solicitation results.
Appears in 1 contract
Sources: Merger Agreement (Marubeni Corp /Fi)
Additional Agreements. Section 5.01. Preparation of the Proxy Statement and Schedule 13E-3; Stockholders’ Meeting .
(a) Subject As soon as reasonably practicable following the date of this Agreement, the Company and Parent shall prepare, and the Company shall file with the SEC, the Proxy Statement. The Company shall cause the Proxy Statement to Section 5.10(b)be mailed to the stockholders of the Company as promptly as practicable. Parent shall furnish to the Company all information as may be reasonably requested by the Company in connection with the preparation, filing and distribution of the Proxy Statement. No filing of, or amendment or supplement to, the Proxy Statement will be made by the Company without providing Parent a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other party hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the stockholders of the Company. The parties shall notify each other promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply each other with copies of all correspondence between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the Merger.
(b) Concurrently with the filing of the Proxy Statement with the SEC, Parent and its Affiliates shall prepare and file with the SEC, together with the Company, the Schedule 13E-3. Parent and the Company shall cause the Schedule 13E-3 to comply with the rules and regulations promulgated by the SEC and respond promptly to any comments of the SEC or its staff regarding the Schedule 13E-3. Each party agrees to provide the other party and its counsel with copies of any comments that such party or its counsel may receive from the staff of the SEC regarding the Schedule 13E-3 promptly after receipt thereof. The Company shall promptly furnish to Parent all information concerning the Company and its executive officers and directors as may reasonably be requested in connection with the preparation of the Schedule 13E-3. The Company and its counsel shall be given an opportunity to review and comment on the Schedule 13E-3 and each supplement, amendment or response to comments with respect thereto prior to filing with or delivering to the SEC.
(c) The Company shall use all its reasonable efforts best efforts, as soon as practicable following the date of this Agreement, to takeestablish a record date for, or cause duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Company Stockholder Approvals; provided that such date may be extended to be taken, all actions the extent reasonably necessary to consummate permit the Company to file and distribute any material amendment to the Proxy Statement as is required by applicable law. Subject to Section 4.02, the Company shall, through its Board of Directors, recommend to its stockholders adoption of this Agreement and the Merger and make effective shall include the other transactions contemplated Company Board Recommendation in the Proxy Statement. A Change in Recommendation permitted by Sections 4.02(e), (f) or (g) will not constitute a breach by the Company of this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by terms of this Agreement, (iithe Company’s obligations pursuant to the first sentence of this Section 5.01(c) shall use all reasonable efforts not be affected by the commencement, public proposal, public disclosure or communication to obtain each Consent the Company of any Takeover Proposal (if any) required whether or not a Superior Proposal). In addition, notwithstanding any Change in Recommendation, unless this Agreement is terminated pursuant to, and in accordance with, Section 7.01, this Agreement shall be submitted to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any stockholders of the other transactions contemplated by Company at the Stockholders’ Meeting for the purpose of adopting this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. (a) During the Pre-Closing Period, subject to applicable Legal Requirements and only to the extent the integrity of any clinical trial is not compromised in any respect (as determined by the Company after consultation with outside legal counsel), the Company shall (i) provide Parent with advance notice, if practicable, of any meetings or scheduled videoconferences or calls, in each case, that are substantive or reasonably likely to be substantive, that an Acquired Company has with the FDA or EMA or any advisory committee thereof and permit a reasonable number of Representatives of Parent (not to exceed two) to attend any such meeting, videoconference or call, (ii) promptly notify Parent of any substantive notice or other substantive communication to an Acquired Company from the FDA or EMA or any advisory committee thereof with respect to any product or product candidate of the Company and (iii) promptly furnish Parent with all substantive correspondence, filings and written communications to be sent or received by an Acquired Company and their respective Representatives to or from, as the case may be, the FDA, EMA, any advisory committee thereof or its staff. Subject to applicable Legal Requirements and only to the extent reasonably practicable and the integrity of any clinical trial is not compromised in any respect (as determined by the Company after consultation with outside legal counsel), prior to attending any such meeting, videoconference or call, or responding to or making any such communication with respect to any of the foregoing, the Company shall, and shall, as necessary, instruct its Representatives to, consult with Parent and consider in good faith the views and comments of Parent in connection with, and reasonably in advance of, any such meeting, videoconference, call, response or communication. Notwithstanding the foregoing, the Company’s obligations set forth in this clause (a) shall only apply to the extent that the Company receives reasonable notice of such meeting, videoconference, call, communication or correspondence.
(b) Without limitation or contravention of the provisions of Section 5.10(b6.2 (but subject to Section 6.2(e)), and subject to the terms and conditions of this Agreement, Parent and the Company shall use all commercially reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Offer and the Merger and make effective the other transactions contemplated by this AgreementTransactions. Without limiting the generality of the foregoing, but subject to Section 5.10(b)the terms and conditions of this Agreement, each party to this Agreement Party shall (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party Party in connection with the Offer and the Merger and the other transactions contemplated by this AgreementTransactions pursuant to any applicable Legal Requirements set forth on Schedule 6.7, (ii) shall use all commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) Material Contract set forth on Schedule 6.7 by such party Party in connection with the Merger or any of the other transactions contemplated by this Agreement, Transactions and (iii) shall use all commercially reasonable efforts to lift any restraint, injunction or other legal bar to the MergerOffer or the Merger brought by any third Person against such Party. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. SECTION 5.01. Preparation of the Proxy Statement; Stockholders Meeting --------------------------------------------------------
(a) Subject to Section 5.10(b)As promptly as reasonably practicable following the date of - this Agreement, Parent the Company shall prepare and file with the SEC the Proxy Statement in preliminary form and the Company shall use all its commercially reasonable efforts to takerespond as promptly as practicable to any comments of the SEC with respect thereto, or to prepare and file with the SEC the definitive Proxy Statement and to cause the definitive Proxy Statement to be takenmailed to the Company's stockholders as promptly as practicable following the date of this Agreement. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and shall provide Parent with copies of all correspondence between the Company and its representatives, all actions necessary to consummate on the Merger one hand, and make effective the SEC and its staff, on the other transactions contemplated hand. Parent shall promptly provide any information or responses to comments or other assistance reasonably requested in connection with the foregoing. Prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent an opportunity to review and comment on such document or response, (ii) shall give reasonable consideration to all comments proposed by Parent and (iii) shall not file or mail any such document or submit any response to the SEC to which Parent reasonably objects.
(b) The Company shall, as promptly as practicable following the date of this Agreement, establish a record date (which will be as promptly as reasonably practicable following the date of this Agreement) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") for the purpose of obtaining the Company --------------------- Stockholder Approval. Except as expressly permitted pursuant to Section 4.02(b), the Company shall, through its Board of Directors, recommend to its stockholders that they adopt this Agreement, and shall include such recommendation in the Proxy Statement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party the Company agrees that its obligations pursuant to this Agreement (iSection 5.01(b) shall make all filings (if any) and give all notices (if any) required not be affected by the commencement, public proposal, public disclosure or communication to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger Company or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose person of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsTakeover Proposal.
Appears in 1 contract
Additional Agreements. 5.1 DSNC PROXY STATEMENT/PROSPECTUS; REGISTRATION STATEMENT; TEK PROXY STATEMENT; OTHER FILINGS; BOARD RECOMMENDATIONS.
(a) Subject to Section 5.10(b)As promptly as practicable after the execution of this Agreement, Parent DSNC and Tek will prepare, and file with the SEC, the DSNC Proxy Statement and the Company shall Tek Proxy Statement, and Tek will prepare and file with the SEC the Registration Statement in which the DSNC Proxy Statement will be included as a prospectus. Each of DSNC and Tek will respond to any comments of the SEC, will use all its respective reasonable best efforts to take, or cause have the Registration Statement declared effective under the Securities Act and the DSNC Proxy Statement and the Tek Proxy Statement to be takencleared by the SEC as promptly as practicable after such filings and, all actions necessary to consummate the extent that presenting this Agreement and the Merger to DSNC's shareholders and Tek's shareholders for their respective approval and adoption would not violate applicable law, DSNC will cause the DSNC Proxy Statement to be mailed to the DSNC shareholders, and Tek will cause the Tek Proxy Statement to be mailed to the Tek shareholders, at the earliest practicable time after the Registration Statement is declared effective by the SEC. As promptly as practicable after the date of this Agreement, each of DSNC and Tek will prepare and file any other filings required to be filed by it under the Exchange Act, the Securities Act or any other Federal, foreign or Blue Sky or related laws relating to the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make the "Other Filings"). Each of DSNC and Tek will notify the other promptly upon the receipt of any comments from the SEC or its staff or any other government officials and of any request by the SEC or its staff or any other government officials for amendments or supplements to the Registration Statement, the DSNC Proxy Statement, the Tek Proxy Statement, or any Other Filing or for additional information and will supply the other with copies of all filings (if any) and give all notices (if any) required to be made and given by correspondence between such party in connection with or any of its representatives, on the Merger one hand, and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or ContractSEC, or otherwise) by such party in connection its staff or any other government officials, on the other hand, with respect to the Registration Statement, the DSNC Proxy Statement, the Tek Proxy Statement, the Merger or any Other Filing. Each of DSNC and Tek will cause all documents that it is responsible for filing with the SEC or other regulatory authorities under this Section 5.1(a) to comply in all material respects with all applicable requirements of law and the rules and regulations promulgated thereunder. Whenever DSNC or Tek obtains knowledge of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts occurrence of any event which is required to lift any restraint, injunction be set forth in an amendment or other legal bar supplement to the Merger. The Company shall DSNC Proxy Statement, the Tek Proxy Statement, the Registration Statement or any Other Filing, DSNC or Tek, as the case may be, will promptly deliver inform the other of such occurrence and cooperate in filing with the SEC or its staff or any other government officials, and/or mailing to Parent a copy shareholders of each DSNC or Tek, such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Periodamendment or supplement.
(b) Notwithstanding Subject to the provisions of Section 5.4(b) the DSNC Proxy Statement will include the recommendation of the Board of Directors of DSNC, and the Tek Proxy Statement will include the recommendation of the Board of Directors of Tek, in favor of adoption and approval of this Agreement and approval of the Merger (except that notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any the Board of its subsidiaries to dispose Directors of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations DSNC or the future operations Board of any Directors of Tek may withdraw, modify or refrain from making such recommendation to the Acquired Corporationsextent that the Board determines, in good faith, after consultation with outside legal counsel, that compliance with the Board's fiduciary duties would require it to do so).
Appears in 1 contract
Additional Agreements. Section 6.1. Preparation of the Form S-4 and the Joint Proxy Statement/Prospectus; Stockholders Meetings.
(a) As soon as reasonably practicable following the date of this Agreement, Amedisys and OPCH shall prepare the Form S-4 and the Joint Proxy Statement/Prospectus, and OPCH shall file the Form S-4, which shall include the Joint Proxy Statement/Prospectus as a prospectus, with the SEC. The parties shall consult each other in connection with setting a preliminary record date for each of the Amedisys Stockholders Meeting and the OPCH Shareholders Meeting and shall commence broker searches pursuant to Section 14a-13 of the Exchange Act in connection therewith. Each of Amedisys and OPCH shall use reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Amedisys and OPCH shall, as promptly as practicable after receipt thereof, provide the other party copies of any written comments and advise the other party of any oral comments, with respect to the Form S-4 or the Joint Proxy Statement/Prospectus received from the SEC. OPCH and Amedisys shall cooperate and provide the other parties with a reasonable opportunity to review and comment on any amendment or supplement to the Form S-4 or the Joint Proxy Statement/Prospectus prior to filing such with the SEC. No filing of, or amendment or supplement to, the Form S-4 will be made by OPCH, and no filing of, or amendment or supplement to, the Joint Proxy Statement/Prospectus will be made by OPCH or Amedisys, in each case without providing the other with a reasonable opportunity to review and comment (which comments shall be considered by the applicable party in good faith) thereon if reasonably practicable; provided that with respect to documents filed by a party that are incorporated by reference in the Form S-4 or the Joint Proxy Statement/Prospectus, this right of review and comment shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, or the combined entity or the transactions contemplated hereby; and provided, further, that this review and comment right shall not apply with respect to information relating to an Amedisys Recommendation Change or an OPCH Recommendation Change. Amedisys shall use reasonable best efforts to cause the Joint Proxy Statement to be mailed to Amedisys’s stockholders, and OPCH shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus to be mailed to OPCH’s stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Each party shall advise the other parties, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, of the time when any supplement or amendment to the Form S-4 has been filed, of the issuance of any stop order with respect to the Form S-4, or of any request by the SEC for amendment of the Form S-4 or the Joint Proxy Statement/Prospectus or comments on the Form S-4 or the Joint Proxy Statement/Prospectus and responses thereto or requests by the SEC for additional information relating thereto. If at any time prior to the Effective Time any information relating to Amedisys, OPCH or any of their respective affiliates, officers or directors, should be discovered by Amedisys or OPCH that should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to the stockholders of Amedisys and OPCH.
(b) Amedisys shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly give notice of, convene and hold a meeting of its stockholders (the “Amedisys Stockholders Meeting”) in accordance with the DGCL and the rules of the NASDAQ for the purpose of obtaining the Amedisys Stockholder Approval and shall, subject to the provisions of Section 5.2(b) and Section 5.2(d), through its Board of Directors, recommend to its stockholders the adoption of this Agreement. Amedisys may only postpone or adjourn the Amedisys Stockholders Meeting (i) to solicit additional proxies for the purpose of obtaining the Amedisys Stockholder Approval, (ii) for the absence of a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that Amedisys has determined after consultation with outside legal counsel is reasonably likely to be required under Applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of Amedisys prior to the Amedisys Stockholders Meeting.
(c) OPCH shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly give notice of, convene and hold a meeting of its stockholders (the “OPCH Stockholders Meeting”) in accordance with the DGCL and the rules of the NASDAQ for the purpose of obtaining the OPCH Stockholder Approvals and shall, subject to the provisions of Section 5.3(b) and Section 5.3(d), through its Board of Directors, recommend to its stockholders the approval of the OPCH Share Issuance and the adoption of the OPCH Charter Amendment. OPCH may only postpone or adjourn the OPCH Stockholders Meeting (i) to solicit additional proxies for the purpose of obtaining the OPCH Stockholder Approvals, (ii) for the absence of a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that OPCH has determined after consultation with outside legal counsel is reasonably likely to be required under Applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of OPCH prior to the OPCH Stockholders Meeting.
(d) Amedisys and OPCH shall use reasonable best efforts to hold the Amedisys Stockholders Meeting and the OPCH Stockholders Meeting on the same date and as soon as reasonably practicable after the date of this Agreement.
(e) Subject to the terms and conditions of this Agreement, including Section 5.10(b5.2 and Section 5.3, Amedisys and OPCH shall use reasonable best efforts to (i) solicit from Amedisys’s stockholders (in the case of Amedisys) and OPCH’s stockholders (in the case of OPCH) proxies in favor of the Amedisys Stockholder Approval and the OPCH Stockholder Approvals, respectively, and (ii) take all other action necessary or advisable to secure the Amedisys Stockholder Approval and the OPCH Stockholder Approvals, respectively.
(f) The only matters to be voted upon at each of the Amedisys Stockholders Meeting and the OPCH Stockholders Meeting are (i) the Merger, in the case of the Amedisys Stockholders Meeting, and the OPCH Share Issuance and the OPCH Charter Amendment, in the case of the OPCH Stockholders Meeting, (ii) compensatory arrangements between Amedisys and its executive officers relating to the Merger (on a non-binding, advisory basis), Parent in the case of the Amedisys Stockholders Meeting, and (iii) any adjournment or postponement of the Amedisys Stockholders Meeting or the OPCH Stockholders Meeting, as applicable, for a reasonable period to solicit additional proxies, if deemed necessary by Amedisys or OPCH, respectively, and (iv) any other matters that are (I) required by Applicable Law or the Bylaws of OPCH or Amedisys, as applicable, or (II) if so desired and mutually agreed on, of the type customarily brought before a meeting of stockholders in connection with approval of this Agreement and the Company shall use all reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. .
(g) Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) OPCH agrees that its obligations pursuant to this Section 6.1 to hold the OPCH Stockholders Meeting shall make all filings not be affected by the commencement, public proposal, public disclosure or communication to OPCH or any other person of any OPCH Alternative Transaction or the making of an OPCH Recommendation Change and (if anyii) Amedisys agrees that its obligations pursuant to this Section 6.1 to hold the Amedisys Stockholders Meeting shall not be affected by the commencement, public proposal, public disclosure or communication to Amedisys or any other person of any Amedisys Alternative Transaction or the making of an Amedisys Recommendation Change.
(h) Each of Amedisys and give all notices OPCH agrees that none of the information supplied or to be supplied by such party (if anyor its subsidiaries) for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with the SEC, and at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be made and given by such party stated therein or necessary in connection with order to make the Merger and statements therein, in the other transactions contemplated by this Agreementlight of the circumstances under which they are made, not misleading, or (ii) shall use all reasonable efforts the Joint Proxy Statement/Prospectus will, at the date it is first mailed to obtain each Consent (if any) OPCH's or Amedisys's stockholders or at the time of the OPCH Stockholders Meeting or the Amedisys Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be obtained (pursuant stated therein or necessary in order to any applicable Legal Requirement or Contractmake the statements therein, or otherwise) by such party in connection light of the circumstances under which they are made, not misleading. Each of Amedisys and OPCH will cause the Form S-4 and the Joint Proxy Statement/Prospectus to comply as to form in all material respects with the Merger requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. Notwithstanding the foregoing, no covenant is made by either Amedisys or any OPCH with respect to statements made or incorporated by reference therein based on information supplied by or on behalf of the other transactions contemplated party (or its subsidiaries) for inclusion or incorporation by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to reference in the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations Form S-4 or the future operations of any of the Acquired CorporationsJoint Proxy Statement/Prospectus.
Appears in 1 contract
Sources: Merger Agreement
Additional Agreements. SECTION 5.1 PREPARATION OF FORM S-4 AND THE PROXY STATEMENT; STOCKHOLDERS' MEETING.
(a) Subject As promptly as reasonably practicable after the execution of this Agreement, (i) the Company shall prepare and file with the SEC a proxy statement relating to Section 5.10(b)the meeting of the Company's stockholders to be held to obtain the Company Stockholder Approval (together with any amendments thereof or supplements thereto, the "PROXY STATEMENT") and (ii) Parent shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the "FORM S-4") in which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the stockholders of the Company pursuant to the Merger. Each of Parent and the Company shall use all reasonable efforts to takecause the Form S-4 to become effective as promptly as practicable, and shall take all or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) any action required to be made and given by such party under any applicable federal or state securities laws in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (issuance of shares of Parent Common Stock pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. Each of Parent and the Company shall furnish all information concerning itself to the other as the other may reasonably request in connection with such actions and the preparation of the Form S-4 and Proxy Statement. The Company shall promptly deliver authorizes Parent to utilize in the Form S-4 and in all such state filed materials, the information concerning the Company and its subsidiaries provided to Parent a copy of each such filing madein connection with, each such notice given and each such Consent obtained by or contained in, the Proxy Statement. Parent promptly will advise the Company during when the Pre-Closing PeriodForm S-4 has become effective and of any supplements or amendments thereto, and the Company shall not distribute any written material that would constitute, as advised by counsel to the Company, a "prospectus" relating to the Merger or the Parent Common Stock within the meaning of the Securities Act or any applicable state securities law without the prior written consent of Parent. As promptly as practicable after the Form S-4 shall have become effective, the Company and Parent shall mail the Proxy Statement to the Company's stockholders.
(b) Notwithstanding anything Parent agrees promptly to advise the Company if at any time prior to the contrary contained meeting of stockholders of the Company to approve the Merger any information provided by it in the Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide the Company with the information needed to correct such inaccuracy or omission. Parent will furnish the Company with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to Parent and its subsidiaries, to comply with applicable law after the mailing thereof to the stockholders of the Company.
(c) The Company agrees promptly to advise Parent if at any time prior to the meeting of its stockholders any information provided by it in the Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide Parent with the information needed to correct such inaccuracy or omission. The Company will furnish Parent with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to the Company and its subsidiaries, to comply with applicable law after the mailing thereof to stockholders of the Company.
(d) As soon as reasonably practicable following the date of this Agreement, Parent the Company shall not have any obligation under this Agreement: (i) to dispose or cause any call and hold a meeting of its subsidiaries stockholders (the "COMPANY STOCKHOLDERS' MEETING") for the purpose of obtaining the Company Stockholder Approval. The Company shall use its best efforts to dispose solicit from its stockholders proxies, and shall take all other action necessary or advisable to secure the vote or consent of any assets, stockholders required by applicable law or otherwise to commit obtain the Company Stockholder Approval and through its Board of Directors shall (subject to cause any their fiduciary duties) recommend to its stockholders the giving of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompany Stockholder Approval.
Appears in 1 contract
Sources: Merger Agreement (Mail Boxes Etc)
Additional Agreements. SECTION 6.01. PREPARATION OF FORM F-4 AND PROXY STATEMENT/PROSPECTUS OR INFORMATION STATEMENT/PROSPECTUS; STOCKHOLDERS MEETING/WRITTEN CONSENT.
(a) Subject If required by Law in order to Section 5.10(b)consummate the Merger, as soon as practicable following the expiration of the Offer, Parent and the Company shall prepare and file with the SEC (i) a post-effective amendment to the Form F-4 for the offer and sale of the Parent ADSs pursuant to the Merger and in which a proxy statement prepared by the Company and Parent relating to the Company Stockholders Meeting (as amended or supplemented from time to time, the "PROXY STATEMENT") or an information statement prepared by the Company and Parent pursuant to Rule 14c-2 under the Exchange Act (as amended or supplemented from time to time, the "INFORMATION STATEMENT"), as applicable, which will contain the information required under Rule 13e-3 under the Exchange Act, will be included as a prospectus (the "POST-EFFECTIVE AMENDMENT") and (ii) together with Merger Sub, a Rule 13e-3 Transaction Statement on Schedule 13E-3 with respect to the Merger (as supplemented or amended, the "SCHEDULE 13E-3"). Each of the Company and Parent shall notify the other (and each shall also notify the Special Committee and its counsel) promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Post-Effective Amendment, the Proxy Statement, the Information Statement or the Schedule 13E-3 or for additional information and shall supply the other with copies of all correspondence between it or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Post-Effective Amendment, the Proxy Statement, the Information Statement or the Schedule 13E-3. Each of the Company and Parent shall use all its reasonable best efforts to takerespond as promptly as practicable to any comments of the SEC with respect thereto. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Post-Effective Amendment, the Proxy Statement, the Information Statement or the Schedule 13E-3 will be made by either party, without providing the other party a reasonable opportunity to review and comment thereon. Each of the Company and Parent shall use its reasonable best efforts to have the Post-Effective Amendment declared effective under the Securities Act as promptly as practicable after its filing. The Company will use its reasonable best efforts to cause the Proxy Statement or Information Statement, as applicable, to be takenmailed to holders of the Company's capital stock as promptly as practicable after the Post-Effective Amendment is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent ADSs pursuant to the Offer and the Merger, and the Company shall furnish all actions information concerning the Company and its stockholders as may be reasonably requested in connection with any such action and the preparation, filing and/or distribution of the Proxy Statement, the Information Statement and the Schedule 13E-3. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Post-Effective Amendment, the Proxy Statement, the Information Statement or the Schedule 13E-3, so that any of such documents would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto, and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated by the Company to holders of the Company's capital stock.
(b) If required by Law in order to consummate the Merger Merger, the Company shall establish, prior to or as soon as practicable following the date upon which the Post-Effective Amendment becomes effective, a record date (which shall be prior to or as soon as practicable following the date upon which the Post-Effective Amendment becomes effective), and either duly call, give notice of, convene and hold a meeting of holders of the Company's capital stock (the "COMPANY STOCKHOLDERS MEETING") or follow all required procedures in soliciting consents from holders of Company Common Stock, for the purpose of seeking the Company Stockholder Approval, as applicable. In such event, the Proxy Statement or the Information Statement, as the case may be, shall include a description of the recommendations referred to in Section 3.03(b), and neither the Company Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify such recommendations or related approval; PROVIDED, HOWEVER, that the Company Board or the Special Committee may determine not to make effective such recommendations or such recommendations may be withdrawn or modified to the other transactions contemplated by this Agreementextent that the Special Committee determines in good faith, after consultation with outside legal counsel, that such recommendations would be inconsistent with its fiduciary duties to stockholders of the Company under applicable law. Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to the first sentence of this Section 5.10(b), each party to this Agreement (i6.01(b) shall make all filings (if any) and give all notices (if any) required to not be made and given affected by such party in connection with the Merger and withdrawal or modification by either the other transactions contemplated by Company Board or the Special Committee of its approval or recommendation of this Agreement, the Offer or the Merger.
(iic) shall use all reasonable efforts to obtain each Consent Notwithstanding the foregoing, if Parent, Merger Sub or any other subsidiary of Parent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with other than the Merger Company or any of its subsidiaries) shall acquire at least 90% of the other transactions contemplated outstanding shares of each class of capital stock of the Company entitled to vote on a merger and if permitted by Section 253 of the DGCL, at Parent's sole discretion, the parties shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the expiration of the Offer without a stockholders meeting or written consent in accordance with Section 253 of the DGCL (a "SHORT-FORM MERGER").
(d) Parent shall cause Merger Sub to vote any shares of Company Common Stock owned by it and not held in the Voting Trust in favor of the adoption of this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Periodif applicable.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Sources: Merger Agreement (Axa)
Additional Agreements. (a) Subject Without limitation or contravention of the provisions of Section 4.03, and subject to Section 5.10(b)the terms and conditions of this Agreement, Parent and the Company shall use all commercially reasonable best efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this AgreementTransactions. Without limiting the generality of the foregoing, but subject to Section 5.10(b)the terms and conditions of this Agreement, each party Party to this Agreement shall (ia) shall make all filings (if any), maintain or obtain all Consents (if any) and give all notices (if any) required to be made and given by such party Party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (Transactions pursuant to any applicable Legal Requirement Law or Contract, or otherwise) by such party Material Contract set forth in connection with the Merger or any Section 4.06 of the other transactions contemplated by this AgreementCompany Disclosure Schedule, and (iiib) shall use all commercially reasonable best efforts to lift any restraint, injunction or other legal bar (other than with respect to Antitrust Laws and Foreign Direct Investment Laws) to this Agreement or the MergerArrangement brought by any third Person against such Party, (c) use commercially reasonable best efforts to satisfy all conditions precedent in this Agreement and take all steps set forth in the Interim Order and Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the Arrangement, (d) cooperate with the other Parties in connection with the performance by it and its Subsidiaries of their obligations hereunder, (e) carry out the terms of the Interim Order and the Final Order applicable to it and comply promptly with all requirements imposed by applicable Law on it or its Subsidiaries with respect to this Agreement or the Arrangement, and (f) not take any action, or refrain from taking any commercially reasonable action, or permitting any action to be taken or not taken, in each case, which is inconsistent with this Agreement or would reasonably be expected to prevent, materially delay or otherwise impede the consummation of the Arrangement or the transactions contemplated by this Agreement. This Section 4.06 shall not apply to approval under Antitrust Laws or Foreign Direct Investment Laws, which are the subject of Section 4.03. The Company shall promptly deliver give notice to Parent as promptly as reasonably practicable after (and shall subsequently keep Parent informed on a copy reasonably current basis of each any developments related to such filing made, each notice) it becomes aware of (i) the receipt of any notice from any Person alleging that the Consent of such notice given and each such Consent obtained by Person is or may be required in connection with any of the Transactions or (ii) that any Legal Proceeding has been commenced or threatened in writing relating to or involving the Company during or any Company Subsidiary that relates to the consummation of the Transactions. For the avoidance of doubt, the Company shall not be required to pay for any such consent, nor shall obtaining any such filing, notice or consent be a condition precedent to the Closing. During the Pre-Closing Period.
, the Company and its Subsidiaries shall keep Parent promptly informed in writing of any material communication (bwritten or oral) Notwithstanding anything with or from the FDA, Health Canada, or any other Governmental Body performing functions similar to those performed by the contrary contained in this AgreementFDA related to a Company Product. The Company and the Company Subsidiaries shall consult with, and consider any comment from, Parent shall not have in good faith prior to making any obligation under this Agreement: (i) material submissions to dispose or cause any of its subsidiaries to dispose of any assetshaving material discussions with the FDA, Health Canada, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body performing functions similar to those performed by the FDA. The Company shall ensure that it has available (on hand or otherwisethrough capacity under a credit facility) regarding its future operations or funds to pay the future operations of any of the Acquired CorporationsTermination Payment, if payable.
Appears in 1 contract
Additional Agreements. (a) Subject Section 7.01 Proxy Statement, Information Statement, Other Filings and Form S-4As promptly as reasonably practicable following the date of this Agreement, the Company Parties shall prepare and, once reasonably acceptable to Section 5.10(b), Parent and the Company shall use all reasonable efforts to takeParties, file with the SEC the preliminary Proxy Statement and each of the Company Parties and Buyer Parties shall, or shall cause to be takentheir respective Affiliates to, prepare and, after consultation with each other, file with the SEC all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) Other Filings that are required to be made and given filed by such party in connection with the Merger transactions contemplated hereby. Each of the Company Parties and Buyer Parties shall furnish all information concerning itself and its affiliates that is required to be included in the Proxy Statement and the other Information Statement or, to the extent applicable, the Other Filings, or that is customarily included in proxy statements and information statements prepared in connection with transactions of the type contemplated by this Agreement. Each of the Company Parties and Buyer Parties shall use its commercially reasonable efforts, after consultation with the other, to respond as promptly as practicable to any comments of the SEC with respect to the Proxy Statement or the Other Filings, and the Company shall use its commercially reasonable efforts to cause (i) the definitive Proxy Statement to be filed with, and cleared by, the SEC, (ii) shall use all reasonable efforts to obtain each Consent (if any) required the Information Statement to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection filed with the Merger or any of the other transactions contemplated by this Agreement, SEC and (iii) shall use all reasonable efforts the definitive Proxy Statement and the Information Statement to lift any restraint, injunction or other legal bar be mailed to the MergerCompany Shareholders and the Operating Trust Unitholders, respectively, as promptly as reasonably practicable following clearance from the SEC of the definitive Proxy Statement. The Company shall promptly deliver notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement or the Other Filings and shall promptly provide Parent a copy with copies of each such filing madeall correspondence between the Company and its Representatives, each such notice given on the one hand, and each such Consent obtained the SEC and its staff, on the other hand, relating to the Proxy Statement or the Other Filings. If at any time prior to the Company Shareholders’ Meeting, any information relating to the Company Parties or the Buyer Parties or any of their respective affiliates, officers or directors, should be discovered by the Company during or Parent which should be set forth in an amendment or supplement to the Pre-Closing Period.
(b) Proxy Statement, the Information Statement or the Other Filings, so that the Proxy Statement, the Information Statement or the Other Filings shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the shareholders of the Company. Notwithstanding anything to the contrary contained stated above, prior to filing or mailing the Proxy Statement, the Information Statement or filing the Other Filings (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in such documents or responses all comments reasonably proposed by Parent, and to the extent practicable, the Company will provide Parent with the opportunity to participate in any substantive calls between the Company, or any of its Representatives, and the SEC concerning the Proxy Statement. As promptly as reasonably practicable following the date of this Agreement, the Company Parties shall prepare and, once reasonably acceptable to Parent and the Company Parties, file with the SEC the Form S-4 in connection with the registration under the Securities Act of the Series O Preferred Units to be issued in connection with the Operating Trust Merger in accordance with Section 3.02(a), which Form S-4 shall include one or more prospectuses (such offers and proxy statements, together with any amendments or supplements thereto, the “S-4 Related Documents”). The Form S-4 shall also contain the information required for the Information Statement. The S-4 Related Documents shall set forth the procedures, reasonably acceptable to the Company and the Operating Trust, for holders of the Operating Trust Class A-1 Common Units to make an Election, including the deadline for making an Election and the procedures (if any) for revoking an Election. The Company Parties and the Buyer Parties shall cause the Form S-4 and S-4 Related Documents to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the S-4 or S-4 Related Documents and shall promptly provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the S-4 or S-4 Related Documents. If at any time prior to the completion of the Election, any information relating to the Company Parties or the Buyer Parties or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the S-4 or S-4 Related Documents, so that the S-4 or S-4 Related Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the Operating Trust Unitholders. Notwithstanding anything to the contrary stated above, prior to filing the S-4 or S-4 Related Documents (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in such documents or responses all comments reasonably proposed by Parent, and to the extent practicable, the Company will provide Parent with the opportunity to participate in any substantive calls between the Company, or any of its Representatives, and the SEC concerning the S-4. Each of the Company Parties shall use its commercially reasonable efforts, and the Buyer Parties shall cooperate with the Buyer Parties, to have any obligation under this Agreement: the Form S-4 declared effective by the SEC as promptly as practicable (including clearing the S-4 Related Documents with the SEC) and kept effective as long as is necessary to complete the Operating Trust Merger and the Election. The Company Parties shall promptly notify Parent, if applicable, of (i) to dispose or cause any of its subsidiaries to dispose of any assetsthe time when the Form S-4 has become effective, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations filing of any of the Acquired Corporations.supplement or amendment thereto,
Appears in 1 contract
Sources: Merger Agreement
Additional Agreements. Section 7.01 Preparation of the Form S-4 and Proxy Statement
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, Parent and the Company shall prepare, together with OptiCare, and Parent shall file with the SEC, an proxy statement (the "Proxy Statement") in preliminary form and the Form S-4, in which the Proxy Statement will be included as a prospectus, and Parent and the Company shall use all their reasonable efforts to take, or cause respond as promptly as practicable to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality any comments of the foregoing, but subject SEC with respect thereto. Parent and the Company shall use their reasonable efforts to Section 5.10(b), each party have the Form S-4 declared effective by the SEC as promptly as practicable after such filing and to this Agreement (i) ensure that it complies in all material respects with the applicable provisions of the Securities Act and the Exchange Act. Parent and the Company shall make all filings (if any) and give all notices (if any) also take any other action required to be made taken under any applicable federal and given by such party state securities laws in connection with the issuance of Parent Common Stock in the Merger and the other transactions contemplated by this Agreement, (ii) Company and the Stockholders shall use furnish all reasonable efforts to obtain each Consent (if any) required to information concerning the Company and the holders of the Company Common Stock as may be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party reasonably requested in connection with the Merger Proxy Statement or any of the other transactions contemplated by this Agreementsuch action. Parent, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during and the Pre-Closing PeriodStockholders shall each be solely responsible for any statement, information or omission in the Form S-4 or the Proxy Statement relating to it based upon information provided by it for inclusion therein.
(b) Notwithstanding anything If, at any time prior to the contrary receipt of the Parent Stockholder Approval, any event occurs with respect to the Company or any Company Subsidiary, or any change occurs with respect to other information supplied by the Company or any Stockholder for inclusion in the Form S-4 or the Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Proxy Statement, the Company or such Stockholder shall promptly notify Parent of such event, and the Company, the Stockholders and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to Parent's stockholders.
(c) Parent shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold an annual meeting of its stockholders (the "Parent Stockholders Meeting") for the purpose of, among other things, seeking the Parent Stockholder Approval. Parent shall not have any obligation under use its reasonable efforts to cause the Proxy Statement to be mailed to Parent's stockholders as promptly as practicable after the date of this Agreement: (i) . Parent shall, through the Parent Board, recommend to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of stockholders that they give the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsParent Stockholder Approval.
Appears in 1 contract
Sources: Merger Agreement (Refac)
Additional Agreements. SECTION 5.1 PREPARATION OF FORM F-4 AND THE PROXY STATEMENT; SHAREHOLDERS' MEETINGS.
(a) Subject As promptly as reasonably practicable after the execution of this Agreement, (i) the Company and Parent shall prepare and file with the SEC a preliminary joint proxy statement in form and substance satisfactory to Section 5.10(beach of the Company and Parent, relating to the meeting of the Company's shareholders to be held to obtain the Company Shareholder Approval and the meeting of the Parent's Shareholders to obtain the Parent Shareholder Approval (together with any amendments thereof or supplements thereto, the "PROXY STATEMENT") and (ii) Parent shall prepare and file with the SEC a registration statement on Form F-4 (together with all amendments thereto, the "FORM F-4") in which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the shareholders of the Company pursuant to the Merger. As promptly as reasonably practicable after the date of this Agreement, Parent and the Company shall prepare and file any other filings required under the Exchange Act, the Securities Act or any other Federal or Blue Sky Laws relating to the Merger and the transactions contemplated by this Agreement and the Merger Agreement, including, without limitation, under the HSR Act and state takeover laws (the "OTHER 50 55 FILINGS"). Each of Parent and the Company will notify the other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff or any other government officials for amendments or supplements to the Form F-4, the Proxy Statement or any Other Filing or for additional information and will supply the other with copies of all correspondence between such company or any of its representatives, on the one hand, and the SEC, or its staff or any other government officials, on the other hand, with respect to the Form F-4, the Proxy Statement, the Merger or any Other Filing. The Proxy Statement, the Form F-4 and the Other Filings shall comply in all material respects with all applicable requirements of law. Each of Parent and the Company shall use all reasonable efforts to takecause the Form F-4 to become effective as promptly as reasonably practicable, and shall take all or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) any action required to be made and given by such party under any applicable federal or state securities laws in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (issuance of shares of Parent Common Stock pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. Except as set forth in Sections 3.1(p) and 3.2(o), each of Parent and the Company shall furnish all information concerning itself to the other as the other may reasonably request in connection with such actions and the preparation of the Form F-4 and Proxy Statement. The Company shall promptly deliver authorizes Parent to utilize in the Form F-4 and in all such state filed materials, the information concerning the Company and its subsidiaries provided to Parent in connection with, or contained in, the Proxy Statement. Parent promptly will advise the Company when the Form F-4 has become effective and of any supplements or amendments thereto, and the Company shall not distribute any written material that would constitute, as advised by counsel to the Company, a copy "prospectus" relating to the Merger or the Parent Common Stock within the meaning of each such filing madethe Securities Act or any applicable state securities law without the prior written consent of Parent. As promptly as reasonably practicable after the Form F-4 shall have become effective, each such notice given and each such Consent obtained by of the Company during and Parent shall mail the Pre-Closing PeriodProxy Statement to its respective shareholders.
(b) Notwithstanding anything Parent agrees promptly to advise the Company if at any time prior to the contrary contained meeting of the Parent's Shareholders or the meeting of the Company's shareholders any information provided by it in the Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide the Company with the information needed to correct such inaccuracy or omission. Parent will furnish the Company with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to Parent and its subsidiaries, to comply with applicable law after the mailing thereof to the Parent's Shareholders or the Company's shareholders.
(c) The Company agrees promptly to advise Parent if at any time prior to the meeting of the Parent's Shareholders or the meeting of the Company's shareholders any information provided by it in the Proxy Statement is or becomes incorrect or incomplete 51 56 in any material respect and to provide Parent with the information needed to correct such inaccuracy or omission. The Company will furnish Parent with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to the Company and its subsidiaries, to comply with applicable law after the mailing thereof to the Parent's Shareholders or the Company's shareholders.
(d) As soon as practicable following the date of this Agreement, the Company shall call and hold a meeting of its shareholders (the "COMPANY SHAREHOLDERS' MEETING") and the Parent shall not have any obligation under this Agreement: call and hold a meeting of the Parent's Shareholders (the "PARENT SHAREHOLDERS' MEETING"). The purpose of such meetings shall be to obtain the Company Shareholder Approval and the Parent Shareholder Approval, respectively. Each of the Company and Parent shall coordinate and cooperate with respect to the timing of the Company Shareholders' Meeting and Parent Shareholders' Meeting and shall use reasonable efforts to hold such meetings on the same day. Each of the Company and Parent shall use its best efforts to solicit from its shareholders proxies, and shall take all other action necessary or advisable to secure the vote or consent of shareholders required by applicable law or otherwise to obtain the Company Shareholder Approval and the Parent Shareholder Approval, respectively, and through its respective Board of Directors, shall recommend to its respective shareholders the obtaining of the Company Shareholder Approval and the Parent Shareholder Approval, respectively; provided that (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any the recommendation of the Acquired Corporations to dispose Board of any assets; Directors of the Company may not be included or may be withdrawn or modified if previously included if, following receipt of the Company Termination Fee Notice (as defined in Section 7.5(a)), the Company has paid the Company Termination Fee and the Company has accepted a Company Superior Proposal in accordance with the terms of Section 4.2 and (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any the recommendation of the Acquired Corporations to discontinue offering any product; (iii) to license Board of Directors of Parent may not be included or otherwise make availablemay be withdrawn or modified if previously included if, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any following receipt of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; Parent Termination Fee Notice (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Dateas defined in Section 7.5(b)), or to commit to cause any Parent has paid the Parent Termination Fee and Parent has accepted a Parent Superior Proposal in accordance with the terms of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsSection 4.3.
Appears in 1 contract
Additional Agreements. SECTION 5.01. Preparation of the Form F-4 and the Proxy Statement; Company Stockholders' Meeting.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, the Company and Parent shall prepare and the Company shall file with the SEC the Proxy Statement and Parent shall file with the SEC the Form F-4, in which the Proxy Statement shall be included as a prospectus. Each of the Company and Parent shall use all its commercially reasonable efforts to take, or have the Form F-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its commercially reasonable efforts to cause the Proxy Statement to be taken, all actions necessary mailed to consummate the Merger and make Company's stockholders as promptly as practicable after the Form F-4 is declared effective under the Securities Act. Parent shall also take any action (other transactions contemplated by this Agreement. Without limiting the generality than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if anyprocess) required to be made and given by such party taken under any applicable state securities laws in connection with the issuance of Parent ADSs in the Merger, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form F-4 shall be made by Parent, and no filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Proxy Statement shall be made by the Company, in each case without providing the other party the opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to either the Form F-4 or the Proxy Statement, so that (i) the Form F-4 would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein not misleading or (ii) the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, as applicable, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form F-4 or for additional information and shall supply each other with copies of all correspondence between it or any of its Representatives, on the one hand, and the SEC or its staff on the other hand, with respect to the Proxy Statement, the Form F-4 or the Merger.
(b) The Company (i) shall, as soon as practicable following the date of this Agreement, establish a record date (which shall be as soon as practicable following the date of this Agreement) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders' Meeting") solely for the purpose of obtaining the Company Stockholder Approval and (ii) except as expressly permitted pursuant to Section 4.02(b), shall, through its Board of Directors, recommend to its stock holders the approval and adoption of this Agreement, the Merger and the other transactions contemplated by this Agreement, (ii) shall Agreement and use all commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with solicit the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the MergerCompany Stockholder Approval. The Company agrees that its obligations pursuant to this Section 5.01(b) shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained not be affected by the Company during the Pre-Closing Period.
(b) Notwithstanding anything commencement, public proposal, public disclosure or communication to the contrary contained in this Agreement, Parent shall not have Company or any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose other person of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsTakeover Proposal.
Appears in 1 contract
Additional Agreements. Section 7.01 Proxy Statement, Information Statement, Other Filings and Form S-4.
(a) Subject As promptly as reasonably practicable following the date of this Agreement, the Company Parties shall prepare and, once reasonably acceptable to Section 5.10(b), Parent and the Company shall use all reasonable efforts to takeParties, file with the SEC the preliminary Proxy Statement and each of the Company Parties and Buyer Parties shall, or shall cause to be takentheir respective Affiliates to, prepare and, after consultation with each other, file with the SEC all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) Other Filings that are required to be made and given filed by such party in connection with the Merger transactions contemplated hereby. Each of the Company Parties and Buyer Parties shall furnish all information concerning itself and its affiliates that is required to be included in the Proxy Statement and the other Information Statement or, to the extent applicable, the Other Filings, or that is customarily included in proxy statements and information statements prepared in connection with transactions of the type contemplated by this Agreement. Each of the Company Parties and Buyer Parties shall use its commercially reasonable efforts, after consultation with the other, to respond as promptly as practicable to any comments of the SEC with respect to the Proxy Statement or the Other Filings, and the Company shall use its commercially reasonable efforts to cause (i) the definitive Proxy Statement to be filed with, and cleared by, the SEC, (ii) shall use all reasonable efforts to obtain each Consent (if any) required the Information Statement to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection filed with the Merger or any of the other transactions contemplated by this Agreement, SEC and (iii) shall use all reasonable efforts the definitive Proxy Statement and the Information Statement to lift any restraint, injunction or other legal bar be mailed to the MergerCompany Shareholders and the Operating Trust Unitholders, respectively, as promptly as reasonably practicable following clearance from the SEC of the definitive Proxy Statement. The Company shall promptly deliver notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement or the Other Filings and shall promptly provide Parent a copy with copies of each such filing madeall correspondence between the Company and its Representatives, each such notice given on the one hand, and each such Consent obtained the SEC and its staff, on the other hand, relating to the Proxy Statement or the Other Filings. If at any time prior to the Company Shareholders’ Meeting, any information relating to the Company Parties or the Buyer Parties or any of their respective affiliates, officers or directors, should be discovered by the Company during or Parent which should be set forth in an amendment or supplement to the Pre-Closing PeriodProxy Statement, the Information Statement or the Other Filings, so that the Proxy Statement, the Information Statement or the Other Filings shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the shareholders of the Company. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement, the Information Statement or filing the Other Filings (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in such documents or responses all comments reasonably proposed by Parent, and to the extent practicable, the Company will provide Parent with the opportunity to participate in any substantive calls between the Company, or any of its Representatives, and the SEC concerning the Proxy Statement.
(b) As promptly as reasonably practicable following the date of this Agreement, the Company Parties shall prepare and, once reasonably acceptable to Parent and the Company Parties, file with the SEC the Form S-4 in connection with the registration under the Securities Act of the Series O Preferred Units to be issued in connection with the Operating Trust Merger in accordance with Section 3.02(a), which Form S-4 shall include one or more prospectuses (such offers and proxy statements, together with any amendments or supplements thereto, the “S-4 Related Documents”). The Form S-4 shall also contain the information required for the Information Statement. The S-4 Related Documents shall set forth the procedures, reasonably acceptable to the Company and the Operating Trust, for holders of the Operating Trust Class A-1 Common Units to make an Election, including the deadline for making an Election and the procedures (if any) for revoking an Election. The Company Parties and the Buyer Parties shall cause the Form S-4 and S-4 Related Documents to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the S-4 or S-4 Related Documents and shall promptly provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the S-4 or S-4 Related Documents. If at any time prior to the completion of the Election, any information relating to the Company Parties or the Buyer Parties or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the S-4 or S-4 Related Documents, so that the S-4 or S-4 Related Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the Operating Trust Unitholders. Notwithstanding anything to the contrary contained stated above, prior to filing the S-4 or S-4 Related Documents (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent a reasonable opportunity to review and comment on such document or response and will include in this Agreementsuch documents or responses all comments reasonably proposed by Parent, and to the extent practicable, the Company will provide Parent with the opportunity to participate in any substantive calls between the Company, or any of its Representatives, and the SEC concerning the S-4. Each of the Company Parties shall not use its commercially reasonable efforts, and the Buyer Parties shall cooperate with the Buyer Parties, to have any obligation under this Agreement: the Form S-4 declared effective by the SEC as promptly as practicable (including clearing the S-4 Related Documents with the SEC) and kept effective as long as is necessary to complete the Operating Trust Merger and the Election. The Company Parties shall promptly notify Parent, if applicable, of (i) to dispose or cause any of its subsidiaries to dispose of any assetsthe time when the Form S-4 has become effective, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue the filing of any supplement or cause any of its subsidiaries to discontinue offering any productamendment thereto, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make availablethe issuance of any stop order, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; and (iv) the suspension of the qualification and registration of the Series O Preferred Unit. The Company Parties also shall use commercially reasonable efforts (including by provision of customary representations and certifications) to hold separate cause H▇▇▇▇ & H▇▇▇▇▇▇ LLP or other counsel reasonably satisfactory to Parent to have delivered an opinion, which opinion shall be filed as an exhibit to the Form S-4, as to federal income tax matters as are required to be addressed in the Form S-4. Parent shall use commercially reasonable efforts (including by provision of customary representations and certifications) to cause any of its subsidiaries Wachtell, Lipton, R▇▇▇▇ & K▇▇▇ or other counsel reasonably satisfactory to hold separate any assets or operations (either before or the Company Parties to have delivered an opinion, which opinion shall be filed with the SEC as an exhibit to the Form S-4, as to federal income tax matters as are required to be addressed in the Form S-4. Such opinions shall contain customary exceptions, assumptions and qualifications and be based upon customary representations. The Operating Trust shall mail the S-4 Related Documents to the Operating Trust Unitholders, as applicable, as promptly as practicable after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsForm S-4 shall have become effective.
Appears in 1 contract
Additional Agreements. SECTION 5.1 PREPARATION OF THE FORM S-4, PROXY STATEMENT; STOCKHOLDERS MEETING.
(a) Subject to Section 5.10(b)As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare, and Parent shall file with the SEC, the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Parent and the Company shall use all reasonable efforts to takehave the Form S-4 declared effective under the Securities Act, or cause and for the Proxy Statement to be takencleared under the Exchange Act, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreementas promptly as practicable after such filing. Without limiting any other provision hereinabove contained, the generality of Form S-4 and the foregoingProxy Statement will contain, but subject to Section 5.10(b)without limitation, each party to this Agreement such information and disclosure reasonably requested by either Parent or the Company so that (i) the Form S-4 conforms in both form and substance to the requirements of the Securities Act, and (ii) the Proxy Statement conforms in both form and substance to the requirements of the Exchange Act. The Company shall make all filings use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(if anyb) and give all notices If at any time prior to the Effective Time there shall occur (if anyi) any event with respect to the Company or any of its Subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be made described in an amendment of, or a supplement to, the Form S-4 or the Proxy Statement, such event shall be so described, and given such amendment or supplement shall be promptly filed with the SEC and, as required by such party law, disseminated to the stockholders of Company.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and the other transactions contemplated by hereby or for additional information and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. The Company and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3, the Board of Directors of the Company shall recommend to the Company's stockholders the approval and adoption of this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of and the other transactions contemplated hereby (the "COMPANY RECOMMENDATION"); provided, however, that the Company's Board of Directors shall not be required to make such Company Recommendation to the extent that it is permitted to effect a Change in the Company Recommendation pursuant to Section 4.3. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation, unless otherwise directed in writing by Parent, this Agreement and the Merger shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation, provided, however, that if the Board of Directors of the Company shall have effected a Change in the Company Recommendation in accordance with this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar then in submitting this Agreement to the Merger. Company's stockholders, the Board of Directors of the Company may submit this Agreement to the Company's stockholders without recommendation (although the resolutions adopting this Agreement and the Plan of Merger as of the date hereof may not be rescinded or amended), in which event the Board of Directors of the Company may communicate the basis for its lack of a recommendation to the Company's stockholders in the Proxy Statement or an appropriate amendment or supplement thereto to the extent required by law.
(e) The Company shall promptly deliver coordinate and cooperate with Parent with respect to Parent a copy the timing of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing PeriodStockholders Meeting.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form S-4 and the Proxy Statement; Stockholders Meetings.
(a) Subject As soon as practicable following the date of this Agreement, the Company and Parent shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use best efforts to Section 5.10(b), have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all best efforts to cause the Proxy Statement to be mailed to the holders of Company Common Stock and Company Preferred Stock as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of the Parent Common Stock and the Parent New Preferred Stock in the Merger and the Company shall use furnish all reasonable efforts to takeinformation concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action. No filing of, or cause amendment or supplement to, the Form S-4 or the Proxy Statement will be made by Parent or the Company without providing the other with the opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock and the Parent New Preferred Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be takendiscovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement, all actions so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to consummate make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company and Parent.
(b) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") in accordance with the DGCL for the purpose of obtaining the Company Stockholder Approval and, subject to its rights to terminate this Agreement pursuant to Section 4.2(b), shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger and make effective the other transactions contemplated by this Agreementhereby. Without limiting the generality of the foregoing, foregoing but subject to its rights to terminate this Agreement pursuant to Section 5.10(b4.2(b), each party the Company agrees that its obligations pursuant to the first sentence of this Agreement (iSection 5.1(b) shall make all filings (if any) and give all notices (if any) required to not be made and given affected by such party in connection with the Merger and the other transactions contemplated by this Agreementcommencement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement public proposal, public disclosure or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar communication to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompany Takeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (Salomon Inc)
Additional Agreements. SECTION 6.01. Preparation of the Form S-4 and the Proxy Statement; Stockholders Meeting.
(a) Subject As soon as reasonably practicable following the date of this Agreement, RJR and ▇▇▇▇▇▇▇▇ American shall prepare and file with the SEC (i) the Proxy Statement in preliminary form and (ii) the Form S-4, in which the Proxy Statement will be included as a prospectus, and each of RJR and B&W shall use its reasonable best efforts to Section 5.10(brespond as promptly as reasonably practicable to any comments of the SEC with respect thereto. Each of RJR and B&W shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing. RJR shall use its reasonable best efforts to cause the Proxy Statement to be mailed to RJR's stockholders as promptly as reasonably practicable after the Form S-4 is declared effective under the Securities Act. RJR shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of ▇▇▇▇▇▇▇▇ American Common Stock in the Merger, and RJR shall furnish all information concerning RJR and the holders of RJR Common Stock and rights to acquire RJR Common Stock pursuant to RJR Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such party or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger. Notwithstanding the foregoing, prior to filing the Form S-4 (or any amendment or supplement thereto) or filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, each of RJR and B&W, as the case may be, (i) shall provide the other party with a reasonable opportunity to review and comment on such document or response, (ii) shall include in such document or response all comments reasonably proposed by such other party and (iii) shall not file or mail such document or respond to the SEC prior to receiving such other party's approval, which approval shall not be unreasonably withheld or delayed.
(b) If, prior to the Effective Time, any event occurs with respect to RJR or any RJR Subsidiary, or any change occurs with respect to other information supplied by RJR for inclusion in the Form S-4 or the Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Proxy Statement, RJR shall promptly notify B&W of such event, and RJR and B&W shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to RJR's stockholders.
(c) If, prior to the Effective Time, any event occurs with respect to the B&W Business (other than with respect to an Excluded Asset or an Excluded Liability), Parent or any change occurs with respect to other information supplied by B&W for inclusion in the Form S-4 or the Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Proxy Statement, B&W shall promptly notify RJR of such event, and B&W and RJR shall cooperate in the Company prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to RJR's stockholders.
(d) RJR shall, as soon as reasonably practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its stockholders (the "RJR Stockholders Meeting") for the purpose of seeking the RJR Stockholder Approval. RJR shall use all its reasonable best efforts to take, or cause the Proxy Statement to be takenmailed to RJR's stockholders as soon as reasonably practicable after the Form S-4 is declared effective under the Securities Act. RJR shall, all actions necessary through the RJR Board, recommend to consummate its stockholders that they give RJR Stockholder Approval, except to the extent that the RJR Board shall have withdrawn or modified its approval or recommendation of this Agreement or the Merger and make effective the other transactions contemplated as permitted by this AgreementSection 5.02(b). Without limiting the generality of the foregoing, but subject RJR agrees that its obligations pursuant to the first sentence of this Section 5.10(b), each party to this Agreement 6.01(d) shall not be affected by (i) shall make all filings (if any) and give all notices (if any) required the commencement, public proposal, public disclosure or communication to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, RJR of any RJR Takeover Proposal or (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement the withdrawal or Contract, modification by the RJR Board of its approval or otherwise) by such party in connection with the Merger recommendation of this Agreement or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Sources: Business Combination Agreement (Rj Reynolds Tobacco Holdings Inc)
Additional Agreements. SECTION 5.1 SHAREHOLDER APPROVAL; PREPARATION OF PROXY STATEMENT.
(a) Subject On or prior to Section 5.10(b)February 7, 2000, the Parent shall duly call, give notice of, convene and hold a meeting of holders of the Parent Common Stock (the "Shareholders Meeting") for the purpose of obtaining the Company shall use all reasonable efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this AgreementStockholder Approval. Without limiting the generality of the foregoing, foregoing but subject to Section 5.10(b5.3(b), each party the Parent agrees that its obligations pursuant to the first sentence of this Agreement Section 5.1(a) shall not be affected by (i) shall make all filings (if any) and give all notices (if any) required the commencement, public proposal, public disclosure or communication to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, Parent of any Transaction Proposal or (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement the withdrawal or Contract, or otherwise) modification by such party in connection with the Merger or any Board of Directors of the other transactions contemplated by Parent of its approval or recommendation of this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction Agreement or other legal bar to the Merger. The Company shall promptly deliver Parent shall, through its Board of Directors (but subject to Parent a copy the right of each such filing madethe Board of Directors to withdraw or modify its approval or recommendation of the Merger and this Agreement as set forth in Section 5.3(b)), each such notice given and each such Consent obtained by recommend to its shareholders that the Company during the Pre-Closing PeriodStockholder Approval be given.
(b) Notwithstanding anything The Parent shall prepare and file a preliminary Proxy Statement with the SEC and shall use its reasonable best efforts to respond to any comments of the SEC or its staff, and, to the contrary contained extent permitted by law, to cause the Proxy Statement to be mailed to the Parent's shareholders as promptly as practicable after responding to all such comments to the satisfaction of the staff and in this Agreementany event at least ten (10) days prior to the Shareholders Meeting. The Parent shall notify the Company promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply the Company with copies of all correspondence between the Parent or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement or the Merger. If at any time prior to the Shareholders Meeting there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Parent shall promptly prepare and mail to its shareholders such an amendment or supplement. The Parent shall not have mail any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assetsProxy Statement, or any amendment or supplement thereto, to commit to cause any which the Company reasonably objects. The Company shall cooperate with and provide such information as is reasonably requested by the Parent in the preparation of the Acquired Corporations to dispose Proxy Statement or any amendment or supplement thereto.
(c) Parent, in its capacity as the sole shareholder of any assets; (ii) to discontinue or cause any of Sub, by its subsidiaries to discontinue offering any productexecution hereof, or to commit to cause any of approves and adopts this Agreement and the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationstransactions contemplated hereby.
Appears in 1 contract
Additional Agreements. SECTION 5.01. Preparation of the Form S-4 and the Proxy Statement; Shareholders' Meeting.
(a) Subject As promptly as practicable following the date of this Agreement, the Company and Parent shall prepare and Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use its reasonable best efforts to Section 5.10(b)have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to the shareholders of the Company as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities Laws in connection with the issuance of shares of Parent Common Stock in the Merger, and each of Parent and the Company shall use furnish all reasonable efforts to takeinformation as may be reasonably requested by the other in connection with any such action and the preparation, filing and distribution of the Form S-4 and the Proxy Statement. No filing of, or cause amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to, the Proxy Statement will made by the Company, in each case without providing the other party a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, should be takendiscovered by the Company or Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, all actions so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to consummate make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the shareholders of the Company. The parties shall notify each other promptly of the time when the Form S-4 has become effective, of the issuance of any stop order or suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of (i) all correspondence between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger and make effective (ii) all orders of the other transactions contemplated by SEC relating to the Form S-4.
(b) The Company shall use its reasonable best efforts to, within 120 days following the date of this Agreement, establish a record date for, duly call, give notice of, convene and hold a meeting of its shareholders (the "Shareholders' Meeting") solely for the purpose of obtaining the Shareholder Approval. Subject to Section 4.02, the Company shall, through its Board of Directors, recommend to its shareholders approval of this Agreement and shall include such recommendation in the Proxy Statement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by terms of this Agreement, (iithe Company's obligations pursuant to the first sentence of this Section 5.01(b) shall use all reasonable efforts to obtain each Consent (if any) required to not be obtained (pursuant to any applicable Legal Requirement affected by the commencement, public proposal, public disclosure or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar communication to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsTakeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (Guidant Corp)
Additional Agreements. Section 6.01. Preparation of the Form S-4 and the Proxy Statement; Stockholder Meetings.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, Parent the Company shall prepare and file with the SEC the Proxy Statement and the Company and Parent shall prepare and Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use all its reasonable efforts to take, or cause to be taken, all actions have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and keep the Form S-4 effective for so long as necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall use its reasonable efforts to cause the Proxy Statement to be mailed to the stockholders of the Company as promptly deliver as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action required to be taken under any applicable state securities Laws in connection with the issuance of shares of Parent Common Stock in the Merger, and the Company shall furnish all information concerning the Company and the holders of shares of Company Common Stock as may be reasonably requested by Parent in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will made by the Company, without providing the other party and its counsel a copy reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of each such filing madetheir respective Affiliates, each such notice given and each such Consent obtained directors or officers, should be discovered by the Company during or Parent which should be set forth in an amendment or supplement to either the Pre-Closing Period.
(b) Notwithstanding anything Form S-4 or the Proxy Statement, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the contrary contained in this Agreementextent required by Law, Parent shall not have any obligation under this Agreement: (i) disseminated to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.stockholders of
Appears in 1 contract
Additional Agreements. Section 5.1 Preparation of the Form S-4 and the Proxy Statement; Company Stockholder Meeting.
(a) Subject to Section 5.10(b)Form S-4/Proxy Statement. As soon as practicable following the date of this Agreement, Parent and the Company shall prepare the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use all commercially reasonable efforts (i) to cause the Form S-4 and the Proxy Statement to comply with the applicable rules and regulations promulgated by the SEC, (ii) to promptly notify the other of, cooperate with each other with respect to, and respond promptly to any comments of the SEC or its staff, (iii) to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and (iv) to keep the Form S-4 effective through the Closing in order to permit the consummation of the Transactions. The Company shall use commercially reasonable efforts to takecause the Proxy Statement to be mailed to the Company's stockholders, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. No filing of, or cause amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will be takenmade by the Company or Parent, all actions necessary to consummate the Merger and make effective in each case, without providing the other transactions contemplated by this Agreementparty and its respective counsel the reasonable opportunity to review and comment thereon and giving due consideration to such comments. Without limiting Notwithstanding the generality immediately preceding sentence, the Company may amend or supplement the Proxy Statement to effect a Company Adverse Recommendation Change. The parties shall notify each other promptly of the foregoing, but subject receipt of any comments from the SEC or its staff and any request by the SEC or its staff for amendments or supplements to Section 5.10(b), the Proxy Statement or the Form S-4 or for additional information and shall supply each party to this Agreement (i) shall make other with copies of all filings (if any) and give all notices (if any) required to be made and given by correspondence between such party or any of its representatives, on the one hand, and the SEC or its staff on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order or the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger and for offering or sale in any jurisdiction. If at any time prior to the other transactions contemplated by this AgreementEffective Time any information relating to the Company or Parent, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreementtheir respective affiliates, and (iii) shall use all reasonable efforts to lift any restraintofficers or directors, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained should be discovered by the Company during the Pre-Closing Period.
(b) Notwithstanding anything or Parent which should be set forth in an amendment or supplement to the contrary contained in this AgreementForm S-4 or the Proxy Statement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause so that any of its subsidiaries such documents would not include any misstatement of a material fact or omit to dispose of state any assetsmaterial fact necessary to make the statements therein, or to commit to cause any in light of the Acquired Corporations circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information must be promptly filed with the SEC and, to dispose of any assets; (ii) the extent required by Law, disseminated to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any the stockholders of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompany.
Appears in 1 contract
Additional Agreements. The Company agrees that, upon --------------------- the occurrence and during the continuance of a Default hereunder, it will, at any time and from time to time, upon the written request of the Trustee, use its best efforts to take or to cause the issuer of the Pledged Shares and any other securities distributed in respect of the Pledged Shares (acollectively with the Pledged Shares, the "Pledged Securities") Subject to Section 5.10(btake such action and prepare, distribute or file such documents, as are required or advisable in the reasonable opinion of counsel for the Trustee to permit the public sale of such Pledged Securities. The Company further agrees to indemnify, defend and hold harmless the Trustee, each Holder, any underwriter and their respective officers, directors, affiliates and controlling persons from and against all loss, liability, expenses, costs of counsel (including reasonable fees and expenses of legal counsel to the Trustee), Parent and claims (including the costs of investigation) that they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except insofar as the same may have been caused by any untrue statement or omission based upon information furnished in writing to the Company shall or the issuer of such Pledged Securities by the Trustee or any Holder expressly for use all reasonable therein. The Company further agrees, upon such written request referred to above, to use its best efforts to takequalify, file or register, or cause the issuer of such Pledged Securities to qualify, file or register, any of the Pledged Securities under the Blue Sky or other securities laws of such states as may be requested by the Trustee and keep effective, or cause to be takenkept effective, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoingsuch qualifications, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Mergerregistrations. The Company shall promptly deliver will bear all costs and expenses of carrying out its obligations under this Section 10.13. The Company acknowledges that there is no adequate remedy at law for failure by it to Parent a copy comply with the provisions of each this Section 10.13 and that such filing madefailure would not be adequately compensable in damages, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary therefore agree that their agreements contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsSection 10.13 may be specially enforced.
Appears in 1 contract
Sources: Indenture (Rev Holdings Inc)
Additional Agreements. Section 6.1 PREPARATION OF FORM S-4 AND THE PROXY STATEMENT/PROSPECTUS.
(a) As promptly as practicable after the execution of this Agreement, the Company and Parent shall cooperate with each other regarding, and, prepare and file with the SEC, a proxy statement/prospectus (together with any amendments thereof or supplements thereto, the “Proxy Statement/Prospectus”) relating to the meeting of the Company’s stockholders to be held to consider approval of the Merger (the “Company Voting Proposal”), and Parent shall prepare and file a registration statement on Form S-4 (in which the Proxy Statement/Prospectus will be included) pursuant to which the issuance of Parent Common Shares, if any, to be issued in the Merger will be registered under the Securities Act (the “Registration Statement”). Subject to the provisions of Section 5.10(b6.4, the Proxy Statement/Prospectus shall include the recommendation of the Company Board to the stockholders of the Company in favor of approval this Agreement and the Merger (the “Company Recommendation”). The Company and Parent will cause the Proxy Statement/Prospectus and the Registration Statement to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the rules and regulations thereunder. Each of Parent and the Company shall use all reasonable efforts to take, have or cause the Proxy Statement/Prospectus to be taken, all actions necessary cleared by the SEC and to consummate cause the Merger and make Registration Statement to become effective the other transactions contemplated by this Agreementas promptly as practicable. Without limiting the generality of the foregoing, but subject each of the Company and Parent shall cause its respective officers, directors, employees, financial advisors, agents or other representatives (“Representatives”) to Section 5.10(b)fully cooperate with the other party and its respective Representatives in the preparation of the Proxy Statement/Prospectus and the Registration Statement, each and shall, upon request, furnish the other party to this Agreement (i) shall make with all filings (if any) information concerning it and give all notices (if any) required to be made and given by such party its Affiliates as the other may deem reasonably necessary or advisable in connection with the Merger preparation of the Proxy Statement/Prospectus and the other transactions contemplated by this Agreement, (ii) Registration Statement. Parent shall use all commercially reasonable best efforts to obtain each Consent (if any) take all actions required to be obtained (pursuant to under any applicable Legal Requirement federal or Contract, state securities or otherwise) by such party Blue Sky Laws in connection with the Merger or any issuance of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar Parent Common Shares pursuant to the Merger, if any, and will pay all filing fees incident thereto. The As promptly as practicable after the Registration Statement becomes effective, the Company shall promptly deliver cause the Proxy Statement/Prospectus to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Periodbe mailed to its stockholders.
(b) Notwithstanding anything Without limiting the generality of the foregoing, prior to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: Effective Time (i) to dispose the Company and Parent shall notify each other as promptly as practicable upon becoming aware of any event or cause circumstance which should be described in an amendment of, or supplement to, the Proxy Statement/Prospectus or the Registration Statement, and (ii) the Company and Parent shall each notify the other as promptly as practicable after the receipt by it of any written or oral comments of the SEC on, or of any written or oral request by the SEC for amendments or supplements to, the Proxy Statement/Prospectus or the Registration Statement, and shall promptly supply the other with copies of all correspondence between it or any of its subsidiaries Representatives and the SEC with respect to dispose of any assets, or to commit to cause any of the Acquired Corporations foregoing filings.
(c) Prior to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any the mailing of the Acquired Corporations Proxy Statement/Prospectus, the Company shall designate The ▇▇▇▇▇▇ Group or another agent reasonably acceptable to discontinue offering any product; (iii) Parent to license or otherwise make available, or cause any act as the solicitor for the purpose of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any soliciting proxies from the Company’s stockholders for the approval of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompany Voting Proposal.
Appears in 1 contract
Sources: Merger Agreement (Inland Retail Real Estate Trust Inc)
Additional Agreements. Section 6.01. Schedule 13E-3.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, the Company, THL and Parent shall jointly prepare and the Company shall use all reasonable efforts to take, or cause to be takenfiled with the SEC a Rule 13e-3 transaction statement on Schedule 13E-3 (such Schedule 13E-3, as amended or supplemented, being referred to herein as the “Schedule 13E-3”). Each of the Company, THL and Parent shall use its reasonable best efforts to ensure that the Schedule 13E-3 will comply in all actions necessary material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. Each of the Company, THL and Parent shall use its reasonable best efforts to consummate respond promptly to any comments of the Merger SEC with respect to the Schedule 13E-3. Each of the Company, THL and make effective Parent shall furnish all information concerning such party to the others as may be reasonably requested in connection with the preparation, filing and distribution of the Schedule 13E-3 and the resolution of comments from the SEC. The Company shall promptly, and in any event within twenty-four (24) hours, notify THL and Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Schedule 13E-3 and shall provide THL with copies of all correspondence between the Company and its representatives, on the one hand, and the SEC and its staff, on the other transactions contemplated by this Agreementhand. Without limiting Prior to filing or mailing the generality Schedule 13E-3 (or any amendment or supplement thereto) or responding to any comments of the foregoingSEC with respect thereto, but subject to Section 5.10(b), each party to this Agreement the Company (i) shall make all filings provide THL and Parent a reasonable period of time to review and comment on such document or response and (if anyii) shall consider in good faith any comments reasonably proposed by THL and give all notices Parent. THL and Parent shall provide reasonable assistance and cooperation to the Company in the preparation, filing and mailing/distribution of the Schedule 13E-3 and the resolution of comments from the SEC.
(if anyb) Each of the Company, THL and Parent agrees, as to itself and its respective Affiliates or Representatives, that none of the information supplied or to be supplied by the Company, THL or Parent, as applicable, expressly for inclusion or incorporation by reference in the Schedule 13E-3 or any other documents filed or to be filed with the SEC in connection with the Transactions, will, as of the time such documents (or any amendment thereof or supplement thereto) are mailed to the holders of Shares, contain any untrue statement of a material fact, or omit to state a material fact required to be made therein, or necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. Each of the Company, THL and given by Parent further agrees that all documents that such party is responsible for filing with the SEC in connection with the Merger will comply as to form and substance in all material respects with the applicable requirements of the Securities Act, the Exchange Act, and any other applicable Laws and that all information supplied by such party for inclusion or incorporation by reference in such document will not contain any untrue statement of a material fact, or omit to state a material fact required to be made therein, or necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. If at any time prior to the Effective Time, any event or circumstance relating to the Company, THL or Parent, or their respective Affiliates, officers or directors, should be discovered that should be set forth in an amendment or a supplement to the Schedule 13E-3 so that such document would not include any misstatement of a material fact or omit to state a material fact required to be made therein, or necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, the party discovering such event or circumstance shall promptly inform the other transactions contemplated parties and an appropriate amendment or supplement describing such event or circumstance shall be promptly filed with the SEC and disseminated to the shareholders of the Company to the extent required by this AgreementLaw; provided that prior to such filing, the Company and THL, as the case may be, shall consult with each other with respect to such amendment or supplement and shall afford the other party and their Representatives a reasonable opportunity to comment thereon.
(c) As soon as practicable after the SEC staff confirms that it has no further comments on the Schedule 13E-3 but in any event no later than five (5) Business Days after such confirmation, the Company shall (i) establish a record date for determining shareholders of the Company to whom the Schedule 13E-3 will be mailed/distributed (the “Record Date”) and shall not change such Record Date unless required to do so by applicable Law; (ii) shall use all reasonable efforts to obtain each Consent (if any) required mail/distribute or cause to be obtained (pursuant mailed/distributed the Schedule 13E-3 to any applicable Legal Requirement or Contractthe holders of Shares, or otherwise) including Shares represented by such party in connection with the Merger or any ADSs, as of the other transactions contemplated by this Agreement, Record Date; and (iii) shall use instruct the Depositary to (A) fix the Record Date as the record date for determining the holders of ADSs to whom the Schedule 13E-3 will be mailed/distributed and (B) provide the Schedule 13E-3 to all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy such holders of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing PeriodADSs.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Sources: Merger Agreement (Sogou Inc.)
Additional Agreements. SECTION 5.01. Preparation of the Form S-4 and the Proxy Statement; Shareholders' Meetings.
(a) Subject As promptly as practicable after the execution of this Agreement, (i) Parent and the Company shall prepare and file with the SEC the proxy statement (as amended or supplemented from time to Section 5.10(btime, the "Proxy Statement") to be sent to the shareholders of the Company relating to the meeting of the Company's shareholders (the "Company Shareholders' Meeting") to be held to consider approval of this Agreement and to be sent to the stockholders of Parent relating to the meeting of Parent's stockholders to be held to vote on the Amendment and Share Issuance (the "Parent Stockholders' Meeting" and, together with the Company Shareholders' Meeting, the "Shareholders' Meetings") and (ii) Parent shall prepare and file with the SEC a registration statement on Form S 4 (as amended or supplemented from time to time, the "Form S-4"), in which the Proxy Statement will be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued in the Share Issuance. Each of Parent and the Company shall use all its reasonable best efforts to takehave the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and, prior to the effective date of the Form S-4, Parent shall take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities Laws in connection with the issuance of shares of Parent Common Stock in the Merger. Each of Parent and the Company shall furnish all information as may be reasonably requested by the other in connection with any such action and the preparation, filing and distribution of the Form S-4 and the Proxy Statement. As promptly as practicable after the Form S-4 shall have become effective, each of Parent and the Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to its respective shareholders and stockholders. No filing of, or cause amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to, the Proxy Statement will made by the Company, in each case without providing the other party a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, should be takendiscovered by the Company or Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, all actions so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to consummate make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the shareholders of the Company. The parties shall notify each other promptly of the time when the Form S-4 has become effective, of the issuance of any stop order or suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of (i) all correspondence between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger and make effective (ii) all orders of the other transactions contemplated by SEC relating to the Form S-4.
(b) The Company shall use its reasonable best efforts to, as promptly as practicable, establish a record date for, duly call, give notice of, convene and hold the Company Shareholders' Meeting solely for the purpose of obtaining the Company Shareholder Approval. Subject to Section 4.02, the Company shall, through its Board of Directors, recommend to its shareholders approval of this AgreementAgreement and shall include such recommendation in the Proxy Statement. Without limiting the generality of the foregoing, but subject to the terms of this Agreement, the Company's obligations pursuant to the first sentence of this Section 5.10(b5.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Takeover Proposal.
(c) Parent shall use its reasonable best efforts to, as promptly as practicable, establish a record date for, duly call, give notice of, convene and hold the Parent Stockholders' Meeting solely for the purpose of obtaining the Parent Stockholder Approval. Parent shall, through its Board of Directors, recommend to its stockholders that they vote in favor of the Amendment and Share Issuance and shall include such recommendation in the Proxy Statement (the "Parent Recommendation"). The Board of Directors of Parent shall not withdraw (or modify in a manner adverse to the Company), each party or publicly propose to withdraw (or modify in a manner adverse to the Company), the Parent Recommendation; provided, however, that none of the following shall constitute a breach of this Agreement Section 5.01(c): (i1) shall make all filings (if any) and give all notices (if any) the disclosure by the Board of Directors of Parent or Parent of any factual information to the stockholders of Parent that is required to be made and given by to such party in connection with the Merger and the other transactions contemplated by this Agreement, stockholders under applicable Law or (ii) shall use all reasonable efforts the disclosure to obtain each Consent (if any) required such stockholders of any conclusions that would have been made by the Board of Directors of Parent based on such information had such information existed on or prior to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any date of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Sources: Merger Agreement (Guidant Corp)
Additional Agreements. SECTION 5.1 Preparation of Form S-4 and the Proxy Statement; Stockholders' Meetings.
(a) Subject As promptly as reasonably practicable after the execution of this Agreement, (i) the Company and Parent shall prepare and file with the SEC a joint proxy statement/registration statement relating to Section 5.10(b)the meetings of the Company's stockholders to be held to obtain the Company Stockholder Approval and of the Parent's stockholders to obtain the Parent Stockholder Approval (together with any amendments thereof or supplements thereto, the "PROXY STATEMENT") and (ii) Parent shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the "FORM S-4") in which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the stockholders of the Company pursuant to the Merger. Each of Parent and the Company shall use all its commercially reasonable efforts to takecause the Form S-4 to become effective as promptly as practicable, and shall take all or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) any action required to be made and given by such party under any applicable federal or state securities laws in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (issuance of shares of Parent Common Stock pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. Each of Parent and the Company shall furnish all information concerning itself to the other as the other may reasonably request in connection with such actions and the preparation of the Form S-4 and Proxy Statement. The Company shall promptly deliver authorizes Parent to utilize in the Form S-4 and in all such state filed materials, the information concerning the Company and its subsidiaries provided to Parent in connection with, or contained in, the Proxy Statement. Parent promptly will advise the Company when the Form S-4 has become effective and of any supplements or amendments thereto, and the Company shall not distribute any written material that would constitute, as advised by counsel to the Company, a copy "PROSPECTUS" relating to the Merger or the Parent Common Stock within the meaning of each such filing madethe Securities Act or any applicable state securities law without the prior written consent of Parent. As promptly as practicable after the Form S-4 shall have become effective, each such notice given and each such Consent obtained by of the Company during and Parent shall mail the Pre-Closing PeriodProxy Statement to its respective stockholders.
(b) Notwithstanding anything Parent agrees promptly to advise the Company if at any time prior to the contrary contained respective meetings of stockholders of Parent or the Company any information provided by it in the Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide the Company with the information needed to correct such inaccuracy or omission. Parent will furnish the Company with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to Parent and its subsidiaries, to comply with applicable law after the mailing thereof to the stockholders of Parent or the Company.
(c) The Company agrees promptly to advise Parent if at any time prior to the respective meetings of stockholders of Parent or the Company any information provided by it in the Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide Parent with the information needed to correct such inaccuracy or omission. The Company will furnish Parent with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to the Company and its subsidiaries, to comply with applicable law after the mailing thereof to stockholders of Parent or the Company.
(d) As soon as reasonably practicable following the date of this AgreementAgreement but taking into account the likely timing of obtaining regulatory approvals to complete the transactions contemplated herein, each of the Company and Parent shall not have any obligation under this Agreement: (i) to dispose or cause any call and hold a meeting of its subsidiaries to dispose respective stockholders (the "COMPANY STOCKHOLDERS' MEETING" and the "PARENT STOCKHOLDERS' MEETING," respectively), for the purpose of any assetsobtaining the Company Stockholder Approval and the Parent Stockholder Approval, or to commit to cause any respectively. Each of the Acquired Corporations Company and Parent shall use its commercially reasonably efforts to dispose solicit from its stockholders proxies, and shall take all other action necessary or advisable to secure the vote or consent of any assets; (ii) stockholders required by applicable law or otherwise to discontinue or cause any obtain the Company Stockholder Approval and the Parent Stockholder Approval, respectively, and through its respective Board of Directors, shall recommend to its subsidiaries to discontinue offering any product, or to commit to cause any respective stockholders the obtaining of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make availableCompany Stockholder Approval and the Parent Stockholder Approval, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationsrespectively.
Appears in 1 contract
Additional Agreements. SECTION 6.1 PREPARATION OF PROXY STATEMENT; STOCKHOLDER MEETING; COMFORT LETTERS.
(a) Subject to Section 5.10(b)Promptly following the date of this Agreement, Parent and the Company shall use all reasonable efforts prepare the Schedule 13E-3 with respect to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting Agreement and a proxy statement (the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any"Proxy Statement") required to be made and given by such party distributed to holders of Common Stock in connection with the Merger and include therein the other transactions contemplated recommendation of the Company Board that the stockholders of the Company vote in favor of the approval and adoption of this Agreement and include therein the written opinion of the Financial Adviser that the cash consideration to be received by this Agreementthe stockholders of the Company pursuant to the Merger is fair, (ii) from a financial point of view, to such stockholders; provided, however, that the Company Board may fail to make or may withdraw or modify such recommendation, if, in accordance with Section 5.1, the Company Board recommends a Superior Proposal. The Company shall use all its reasonable best efforts to obtain each Consent (if any) and furnish the information required to be obtained (pursuant included by it in the Proxy Statement and Schedule 13E-3 and, after consultation with ERP, respond promptly to any applicable Legal Requirement or Contractcomments made by the Securities and Exchange Commission (the "SEC") with respect to the Proxy Statement and Schedule 13E-3 and any preliminary version thereof, or otherwise) by such party ERP and Newco will cooperate with the Company in connection with the Merger or any preparation of the other transactions contemplated by this AgreementProxy Statement and Schedule 13E-3 including, and (iii) shall use all reasonable efforts to lift any restraintbut not limited to, injunction or other legal bar furnishing to the MergerCompany any and all information regarding ERP as may be required to be disclosed therein. The Company shall will use reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Periodas practicable.
(b) Notwithstanding anything All filings with the SEC and all mailings to the contrary contained Company's stockholders in this Agreementconnection with the Merger, Parent including the Proxy Statement and Schedule 13E-3, shall be subject to the prior review, comment and approval of ERP and Newco (and such approval shall not have any obligation under be unreasonably withheld or delayed).
(c) The Company shall, as promptly as practicable following the date of this Agreement: Agreement and in consultation with ERP and Newco, duly call and give notice of, and, provided that this Agreement has not been terminated, convene and hold, the Company Stockholders' Meeting for the purpose of approving this Agreement and the transactions contemplated by this Agreement to the extent required by Ohio Law (ithe "Company Stockholders' Meeting"). The Company will use reasonable best efforts to hold such meeting as soon as practicable after the date hereof.
(d) to dispose or cause any Upon the request of its subsidiaries to dispose of any assetsERP, or to commit the Company shall use reasonable best efforts to cause any to be delivered to the Company and ERP a letter of PricewaterhouseCoopers LLP, the Company's independent public accountants, dated a date within two (2) business days before the date of mailing the Proxy Statement to the stockholders of the Acquired Corporations Company and a letter of PricewaterhouseCoopers LLP dated a date within two (2) business days before the Company Stockholders' Meeting, addressed to dispose of any assetsthe Company, in each case customary in scope and substance for letters delivered by independent public accountants in connection with proxy statements similar to the Proxy Statement; (ii) provided, however, that such letters shall only be delivered to discontinue or cause any of its subsidiaries the extent permitted under accounting principles and pronouncements applicable to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsU.S. accounting profession.
Appears in 1 contract
Additional Agreements. Section 6.01 Preparation of the Form S-4 and Joint Proxy Statement.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, Parent and the Company shall prepare, together with USV,, and Parent shall file with the SEC, a joint proxy statement/information statement (the "Joint Proxy Statement") in preliminary form and the Form S-4, in which the Joint Proxy Statement will be included as a prospectus, and Parent and the Company shall use all their reasonable efforts to take, or cause respond as promptly as practicable to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality any comments of the foregoing, but subject SEC with respect thereto. Parent and the Company shall use their reasonable efforts to Section 5.10(b), each party have the Form S-4 declared effective by the SEC as promptly as practicable after such filing and to this Agreement (i) ensure that it complies in all material respects with the applicable provisions of the Securities Act and the Exchange Act. Parent and the Company shall make all filings (if any) and give all notices (if any) also take any other action required to be made taken under any applicable federal and given by such party state securities laws in connection with the issuance of Parent Common Stock in the Merger and each of the Parent and the Company shall furnish all information concerning itself and its stockholders as may be reasonably requested by the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger Joint Proxy Statement or any of such action. Parent and the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver each be solely responsible for any statement, information or omission in the Form S-4 or the Joint Proxy Statement relating to it based upon information provided by it for inclusion therein. Palisade agrees to cause USV to furnish all information concerning USV as may be reasonably requested by Parent a copy of each such filing made, each such notice given and each such Consent obtained by or Company in connection with the Company during the Pre-Closing PeriodJoint Proxy Statement or pursuant to this Article VI.
(b) Notwithstanding anything If, at any time prior to the contrary receipt of the Company Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to the Company or any Company Subsidiary, or any change occurs with respect to other information supplied by the Company for inclusion in the Form S-4 or the Joint Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Joint Proxy Statement, the Com- pany shall promptly notify Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Joint Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to Parent's or the Company's stockholders.
(c) If, at any time prior to the receipt of the Company Stockholder Approval or the Parent Stockholder Approval, any event occurs with respect to the Parent, any Parent Subsidiary, or any change occurs with respect to other information supplied by the Parent for inclusion in the Form S-4 or the Joint Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Joint Proxy Statement, the Parent shall promptly notify the Company of such event, and the Parent and Company shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Joint Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to Parent's or the Company's stockholders.
(d) If, at any time prior to the receipt of the Company Stockholder approval or the Parent Stockholder Approval, to Palisade's knowledge, any event occurs with respect to USV, or any change occurs with respect to other information supplied by USV for inclusion in the Form S-4 or the Joint Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Form S-4 or the Joint Proxy Statement, Palisade shall cause USV to (x) promptly notify the Company of such event and (y) to cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Form S-4 or the Joint Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to Parent's or the Company's stockholders.
(e) Palisade agrees that, concurrently with the execution and delivery of this Agreement, it shall, deliver to the Company a duly executed written consent (the "Company Written Consent") with respect to all shares of the Company owned by it in favor of the Merger and approval of this Agreement. The Company shall use its reasonable efforts to cause the Joint Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the date of this Agreement.
(f) Parent shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold an annual meeting of its stockholders (the "Parent Stockholders Meeting") for the purpose of, among other things, seeking the Parent Stockholder Approval. Parent shall not have any obligation under use its rea- sonable efforts to cause the Joint Proxy Statement to be mailed to Parent's stockholders as promptly as practicable after the date of this Agreement: . Parent shall, through the Parent Board, recommend to its stockholders that they give the Parent Stockholder Approval.
(g) Palisade agrees that, by its execution and delivery of this Agreement, it agrees to (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any vote all shares of the Acquired Corporations Parent owned by it in favor of the Merger when called upon by the Parent to dispose of any assetsdo so; (ii) to discontinue or cause any vote all shares of its subsidiaries to discontinue offering any product, or to commit to cause any USV owned by it in favor of the Acquired Corporations USV Transaction when called upon by USV to discontinue offering any productdo so; and (iii) to license or otherwise make available, or cause any vote all shares of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any Parent owned by it in favor of the Acquired Corporations USV Transaction when called upon by Parent to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationsdo so.
Appears in 1 contract
Additional Agreements. a. Preparation of Form S-4 and the Proxy Statement; Stockholders' ------------------------------------------------------------- Meeting; Charter Amendment. Promptly following the date of this -------------------------- Agreement, the Company shall prepare and file with the SEC the Proxy Statement and Acquiror shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Acquiror shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Acquiror shall also take any action (aother than qualifying to do business in any jurisdiction in which it is not now so qualified or consenting to service of process in any jurisdiction in which it has not previously so consented in any action other than one arising out of the offering of the Media Stock and the Series D Preferred Stock in such jurisdiction) Subject required to Section 5.10(b)be taken to qualify the Media Stock and Series D Preferred Stock to be issued in the Merger under any applicable state securities or "blue sky" laws prior to the Effective Time, Parent and the Company shall furnish all information concerning the Company and the holders of the Company Capital Stock as may be reasonably requested in connection with any such action.
i. None of the information supplied or to be supplied by the Company, on the one hand, or Acquiror, on the other hand, for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Proxy Statement will, at the date it is first mailed to the stockholders of the Company or at the time of each Stockholders' Meeting (as defined in Section 7.1(d)), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement and the Form S-4 will comply as to form in all material respects with the requirements of the Exchange Act or the Securities Act, as the case may be. Notwithstanding the foregoing, (i) no representation is made by the Company with respect to statements made or incorporated by reference therein based on information supplied in writing by Acquiror specifically for inclusion or incorporation by reference in the Proxy Statement and (ii) no representation is made by Acquiror with respect to statements made or incorporated by reference therein based on information supplied in writing by the Company specifically for inclusion or incorporation by reference in the Form S-4.
ii. The Company and Acquiror shall cooperate with each other and provide to each other all information necessary in order to prepare the Proxy Statement and the Form S-4. The Company and Acquiror shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any requests by the SEC or its staff for amendments or supplements to the Form S-4 or the Proxy Statement or for additional information and shall supply the other parties with copies of all correspondence between the Company or any of its representatives, or Acquiror or any of its representatives, as the case may be, on the one hand, and the SEC or its staff, on the other hand, with respect thereto. The Company and Acquiror shall use all their respective reasonable best efforts to takerespond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its Subsidiaries, or cause with respect to other information supplied by the Company for inclusion in the Proxy Statement or (ii) any event with respect to Acquiror, or with respect to information supplied by Acquiror for inclusion in the Form S-4, in either case which event is required to be takendescribed in an amendment of, all actions necessary or a supplement to, the Proxy Statement or Form S-4, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to consummate the Merger stockholders of the Company. Acquiror shall notify the Company promptly upon
(i) the declaration by the SEC of the effectiveness of the Form S-4, (ii) the issuance or threatened issuance of any stop order or other order preventing or suspending the use of any prospectus relating to the Form S-4, (iii) any suspension or threatened suspension of the use of any prospectus relating to the Form S-4 in any state, (iv) any proceedings commenced or threatened to be commenced by the SEC or any state securities commission that might result in the issuance of a stop order or other order or suspension of use or (v) any request by the SEC to supplement or amend any prospectus relating to the Form S-4 after the effectiveness thereof. Acquiror and, to the extent applicable, the Company, shall use its reasonable best efforts to prevent or promptly remove any stop order or other order preventing or suspending the use of any prospectus relating to the Form S-4 and make effective to comply with any such request by the SEC or any state securities commission to amend or supplement the Form S-4 or the prospectus relating thereto.
iii. The Company shall, as promptly as practicable, duly call, give notice of, convene and hold a meeting of its stockholders (the "Initial Stockholders' Meeting") for the purpose of obtaining the Stockholder Approvals. The Company shall use its reasonable best efforts to hold such meeting as soon as practicable. In the event the Charter Amendment is not approved at the Initial Stockholders' Meeting, the Company shall, as promptly as practicable following the date of the Initial Stockholders' Meeting, duly call, give notice of, convene and hold another meeting of its stockholders (the "Additional Stockholders' Meeting" and, together with the Initial Stockholders' Meeting, collectively, the "Stockholders' Meetings" and individually, a "Stockholders' Meeting") for the purpose of obtaining the Stockholder Approvals. The Company shall, as promptly as practicable after the date of the Initial Stockholders' Meeting, hold the Additional Stockholders' Meeting. Subject to the fiduciary duties of the Board of Directors of the Company under Applicable Laws and to Section 9.1(g), the Company shall, through the Board of Directors, recommend to its stockholders adoption of this Agreement, the Charter Amendment and the other transactions contemplated by hereby and shall use its best efforts to solicit from stockholders proxies in favor of adoption of this AgreementAgreement and the Charter Amendment and to take all other action necessary to secure the Stockholder Approvals at the Initial Stockholders' Meeting or the Additional Stockholders' Meeting, as the case may be. Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to the first and third sentences of this Section 5.10(b), each party to this Agreement (i7.1(d) shall make not be altered by the commencement, public proposal or communication to the Company of any Acquisition Proposal (as defined in Section 7.10).
iv. Subject to receipt of the Stockholder Approvals, the Company shall take all filings (if any) and give all notices (if any) required actions necessary to cause the Charter Amendment to be made executed, acknowledged and given by such party filed and to become effective no later than immediately prior to the Effective Time in connection accordance with the Merger and DGCL as soon as practicable after the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. approval thereof at a Stockholders' Meeting.
v. The Company shall promptly deliver make stock transfer records relating to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything available to Acquiror to the contrary contained in extent reasonably necessary to effectuate the intent of this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. The Company agrees that, upon the occurrence and during the continuance of a Default hereunder, it will, at any time and from time to time, upon the written request of the Trustee, use its best efforts to take or to cause the issuer of the Pledged Shares and any other securities distributed in respect of the Pledged Shares (acollectively with the Pledged Shares, the "Pledged Securities") Subject to Section 5.10(btake such action and prepare, distribute or file such documents, as are required or advisable in the reasonable opinion of counsel for the Trustee to permit the public sale of such Pledged Securities. The Company further agrees to indemnify, defend and hold harmless the Trustee, each Holder, any underwriter and their respective officers, directors, affiliates and controlling persons from and against all loss, liability, expenses, costs of counsel (including reasonable fees and expenses of legal counsel to the Trustee), Parent and claims (including the costs of investigation) that they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except insofar as the same may have been caused by any untrue statement or omission based upon information furnished in writing to the Company shall or the issuer of such Pledged Securities by the Trustee or any Holder expressly for use all reasonable therein. The Company further agrees, upon such written request referred to above, to use its best efforts to takequalify, file or register, or cause the issuer of such Pledged Securities to qualify, file or register, any of the Pledged Securities under the Blue Sky or other securities laws of such states as may be requested by the Trustee and keep effective, or cause to be takenkept effective, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoingsuch qualifications, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Mergerregistrations. The Company shall promptly deliver will bear all costs and expenses of carrying out its obligations under this Section 10.13. The Company acknowledges that there is no adequate remedy at law for failure by it to Parent a copy comply with the provisions of each this Section 10.13 and that such filing madefailure would not be adequately compensable in damages, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary therefore agree that their agreements contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsSection 10.13 may be specially enforced.
Appears in 1 contract
Sources: Indenture (Rev Holdings LLC)
Additional Agreements. Section 5.1 Preparation of the Form S-4 and the Proxy Statement; Company Stockholder Meeting.
(a) Subject to Section 5.10(b)Form S-4/Proxy Statement. As soon as practicable following the date of this Agreement, Parent and the Company shall prepare the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use all commercially reasonable efforts (i) to cause the Form S-4 and the Proxy Statement to comply with the applicable rules and regulations promulgated by the SEC, (ii) to promptly notify the other of, cooperate with each other with respect to, and respond promptly to any comments of the SEC or its staff, (iii) to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and (iv) to keep the Form S-4 effective through the Closing in order to permit the consummation of the Transactions. The Company shall use commercially reasonable efforts to takecause the Proxy Statement to be mailed to the Company’s stockholders, as promptly as practicable after the Form S-4 is declared effective under the Securities Act. No filing of, or cause amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will be takenmade by the Company or Parent, all actions necessary to consummate the Merger and make effective in each case, without providing the other transactions contemplated by this Agreementparty and its respective counsel the reasonable opportunity to review and comment thereon and giving due consideration to such comments. Without limiting Notwithstanding the generality immediately preceding sentence, the Company may amend or supplement the Proxy Statement to effect a Company Adverse Recommendation Change. The parties shall notify each other promptly of the foregoing, but subject receipt of any comments from the SEC or its staff and any request by the SEC or its staff for amendments or supplements to Section 5.10(b), the Proxy Statement or the Form S-4 or for additional information and shall supply each party to this Agreement (i) shall make other with copies of all filings (if any) and give all notices (if any) required to be made and given by correspondence between such party or any of its representatives, on the one hand, and the SEC or its staff on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order or the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger and for offering or sale in any jurisdiction. If at any time prior to the other transactions contemplated by this AgreementEffective Time any information relating to the Company or Parent, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreementtheir respective affiliates, and (iii) shall use all reasonable efforts to lift any restraintofficers or directors, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained should be discovered by the Company during the Pre-Closing Period.
(b) Notwithstanding anything or Parent which should be set forth in an amendment or supplement to the contrary contained in this AgreementForm S-4 or the Proxy Statement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause so that any of its subsidiaries such documents would not include any misstatement of a material fact or omit to dispose of state any assetsmaterial fact necessary to make the statements therein, or to commit to cause any in light of the Acquired Corporations circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information must be promptly filed with the SEC and, to dispose of any assets; (ii) the extent required by Law, disseminated to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any the stockholders of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompany.
Appears in 1 contract
Sources: Merger Agreement (Polyone Corp)
Additional Agreements. SECTION 6.01. Preparation of the Form S-4 and the Proxy Statement; Stockholders Meetings.
(a) Subject As soon as practicable following the date of this Agreement, the Company and Parent shall prepare and file with the SEC the Proxy Statement in preliminary form and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus, and each of the Company and Parent shall use best efforts to Section 5.10(b)respond as promptly as practicable to any comments of the SEC with respect thereto. Each of the Company and Parent shall use best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use best efforts to cause the Proxy Statement to be mailed to the Company's shareholders, and Parent shall use best efforts to cause the Proxy Statement to be mailed to Parent's stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in connection with the Merger and under the Company Stock Plans and the Company shall use furnish all reasonable efforts information concerning the Company and the holders of the Company Common Stock and rights to takeacquire Company Common Stock pursuant to the Company Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such party or any of its representatives, on the one hand, and the SEC or cause to be takenits staff, all actions necessary to consummate the Merger and make effective on the other transactions contemplated by hand, with respect to the Proxy Statement, the Form S-4 or the Merger. If at any time prior to receipt of the Company Shareholder Approval or the Parent Stockholder Approval, there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company and Parent shall promptly prepare and mail to their respective stockholders such an amendment or supplement.
(b) The Company shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Company Shareholders Meeting") for the purpose of seeking the Company Shareholder Approval. The Company shall, through the Company Board, recommend to its shareholders that they give the Company Shareholder Approval. Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to the first sentence of this Section 5.10(b6.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal.
(c) Parent shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Parent Stockholders Meeting") for the purpose of seeking the Parent Stockholder Approval. Parent shall, through the Parent Board, recommend to its stockholders that they give the Parent Stockholder Approval. Without limiting the generality of the foregoing, Parent agrees that its obligations pursuant to the first sentence of this
Section 6.01 (c) shall not be affected by the commencement, public proposal, public disclosure or communication to Parent of any Parent Takeover Proposal.
(d) The Company shall use its best efforts to cause to be delivered to Parent a letter of Deloitte & Touche LLP ("D&T"), each party the Company's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to this Agreement (i) shall make all filings (if any) Parent, in form and give all notices (if any) required substance reasonably satisfactory to be made Parent and given customary in scope and substance for letters delivered by such party independent public accountants in connection with registration statements similar to the Merger and the other transactions contemplated by this Agreement, Form S-4.
(iie) Parent shall use all reasonable its best efforts to obtain each Consent (if any) required cause to be obtained delivered to the Company a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (pursuant "AA"), Parent's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to any applicable Legal Requirement or Contractthe Company, or otherwise) in form and substance reasonably satisfactory to the Company and customary in scope and substance for letters delivered by such party independent public accountants in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar registration statements similar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing PeriodForm S-4.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. SECTION 6.01. Preparation of the Form S-4 and the Proxy Statement; Stockholders Meeting.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, Parent and the Company shall use all reasonable efforts to take, or cause to be taken, all actions necessary to consummate prepare and the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) Company shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection file with the Merger SEC the Proxy Statement and Parent and the other transactions contemplated by this AgreementCompany shall prepare and Parent shall file with the SEC the Form S-4, (ii) in which the Proxy Statement will be included as a prospectus with respect to the issuance of Parent Shares in the Merger. Parent shall use all reasonable efforts to obtain each Consent have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company will use all reasonable efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (if anyother than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be obtained (pursuant to taken under any applicable Legal Requirement or Contractstate securities laws in connection with the issuance of Parent Shares in the Merger, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action and the preparation, filing and distribution of the Proxy Statement. No filing of, or otherwise) amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form S-4 will be made by such Parent, or the Proxy Statement will be made by the Company, without providing the other party a reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of Parent Shares issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. The Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other transactions contemplated by this Agreementparties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Mergerextent required by law, disseminated to the stockholders of the Company.
(b) The Company shall take all action necessary under all applicable laws to call, give notice of and hold a meeting of the holders of Company Common Stock to vote on a proposal to adopt this Agreement and approve the Merger (the "Stockholders Meeting"). The Stockholders Meeting shall be held (on a date selected by the Company in consultation with Parent) as promptly as practicable after the Form S-4 is declared effective under the Securities Act. The Company shall promptly deliver ensure that all proxies solicited in connection with the Stockholders Meeting are solicited in compliance with all applicable laws. Notwithstanding the foregoing provisions of Section 6.01(a) and (b) Parent shall have the right to Parent a copy delay (i) the effectiveness of each such filing made, each such notice given and each such Consent obtained by the Company during S-4 and/or (ii) date of the Pre-Closing PeriodStockholders Meeting if the condition to the parties obligation to close the Merger contained in Section 7.01(b) shall not be fulfilled.
(bc) Subject to Section 6.01(d): (i) the Proxy Statement shall include a statement to the effect that the Board of Directors of the Company recommends that the Company's stockholders vote to adopt this Agreement at the Stockholders Meeting (the recommendation of the Company's Board of Directors that the Company's stockholders vote to adopt this Agreement being referred to as the "Company Board Recommendation"); and (ii) the Company Board Recommendation shall not be withdrawn or modified in a manner adverse to Parent, and no resolution by the Board of Directors of the Company or any committee thereof to withdraw or modify the Company Board Recommendation in a manner adverse to Parent shall be adopted or proposed.
(d) Notwithstanding anything to the contrary contained in Section 6.01(c), at any time prior to the adoption of this Agreement by the requisite Stockholder Approval, the Company Board Recommendation may be withdrawn or modified in a manner adverse to Parent if: (i) a proposal to acquire (by merger or otherwise) more than fifty percent of the outstanding shares of Company Common Stock is made to the Company and is not withdrawn; (ii) the Company provides Parent with at least two business days prior notice of any meeting of the Company's Board of Directors at which such Board of Directors will consider and determine whether such offer is a Superior Proposal; (iii) the Company's Board of Directors determines in good faith (based upon an opinion of an independent financial advisor of nationally recognized reputation) that such offer constitutes a Superior Proposal; (iv) the Company's Board of Directors determines in good faith, after having taken into account the written advice of the Company's outside legal counsel, that, in light of such Superior Proposal, the withdrawal or modification of the Company Board Recommendation is required in order for the Company's Board of Directors to comply with its fiduciary obligations to the Company's stockholders under applicable law; and (v) neither the Company nor any of its Representatives shall have violated any of the restrictions set forth in Section 5.04 in any material respect.
(e) The Company's obligation to call, give notice of and hold the Stockholders Meeting in accordance with Section 6.01(b) shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission of any Superior Proposal or other Acquisition Proposal, or by any withdrawal or modification of the Company Board Recommendation.
(f) Notwithstanding anything to the contrary contained in this Agreement, Parent if the Company Board Recommendation shall not have any obligation under this Agreement: be withdrawn or modified in a manner adverse to Parent, then, at the request of Parent:
(i) to dispose or cause any the Company shall call, give notice of its subsidiaries to dispose of any assets, or to commit to cause any of and hold the Acquired Corporations to dispose of any assets; Stockholders Meeting on a date and at a time and place determined by Parent;
(ii) the Company shall set a record date for persons entitled to discontinue or cause any of its subsidiaries notice of, and to discontinue offering any productvote at, or to commit to cause any of the Acquired Corporations to discontinue offering any product; Stockholders Meeting;
(iii) the Company shall cause its transfer agent to license or otherwise make available, or cause any of its subsidiaries a stockholder list and other stock transfer records relating to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make Company available to any Person any technology, software or other Proprietary Asset; Parent;
(iv) the Company shall waive any standstill or similar provisions applicable to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or Parent;
(v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any a copy of the Acquired Corporationsopinion of Company Financial Advisor shall be included in the Proxy Statement, provided that the Proxy Statement may also include such additional disclosure regarding such opinion as Company Financial Advisor may reasonably request; and
(vi) the Company shall render such other reasonable assistance to Parent in the solicitation of proxies by Parent in favor of the adoption of this Agreement as Parent shall request.
Appears in 1 contract
Additional Agreements. SECTION 5.1 Preparation of the Form S-4, Joint Proxy Statement; Stockholders Meetings.
(a) Subject As promptly as practicable following the date of this Agreement, Parent shall prepare and file with the SEC (and the Company shall cooperate and participate in the preparation of) the Form S-4, in which the Joint Proxy Statement shall be included as a prospectus and in which a resale prospectus (the "Resale Prospectus") shall be included for the purpose of permitting the Parent Common Stock issued to those affiliates of the Company identified in Section 5.10(b5.10 of the Company Disclosure Schedule to be resold by such affiliates as provided in the last sentence of this Section 5.1(a), . Each of Parent and the Company shall use all their reasonable best efforts to takehave the Form S-4 and the Resale Prospectus declared effective under the Securities Act and the Joint Proxy Statement "cleared" by the SEC's staff for mailing in connection with the Company Stockholder Meeting and the Parent Stockholder Meeting as promptly as practicable after such filing. As promptly as practicable after the Form S-4 is declared effective, each of Parent and the Company shall cause the Joint Proxy Statement to be mailed to their respective stockholders. Parent shall use its reasonable best efforts to maintain the Resale Prospectus in effect for purposes of the Securities Act until the earlier of (i) such time as those affiliates identified on Schedule 5.10 have resold their Parent Common Stock covered by such Resale Prospectus or (ii) 365 days after the effective date of the Resale Prospectus.
(b) If at any time prior to the Effective Time there shall occur (i) any event with respect to the Company or any of its subsidiaries, or cause with respect to other information supplied by Company for inclusion in the Form S-4 or the Joint Proxy Statement or (ii) any event with respect to Parent, or with respect to information supplied by Parent for inclusion in the Form S-4 or the Joint Proxy Statement, in either case, which event is required to be takendescribed in an amendment of, all actions necessary or a supplement to, the Form S-4 or the Joint Proxy Statement, such event promptly shall be so described, and such amendment or supplement shall be promptly filed with the SEC and, as required by law, disseminated to consummate the stockholders of Company and Parent.
(c) Each of the Company and Parent shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and make effective the other transactions contemplated by hereby or for additional information, and shall supply the other with copies of all correspondence between the Company or any of its representatives, or Parent or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. The Company and Parent shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Joint Proxy Statement as promptly as practicable after the receipt thereof. The Company and Parent shall cooperate with each other and provide to each other all information necessary to prepare the Form S-4 and the Joint Proxy Statement, and shall provide promptly to the other party all information such party may obtain that could necessitate amending any such document.
(d) The Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Company Stockholders Meeting in accordance with the DGCL, its certificate of incorporation and by-laws, as applicable, for the purpose of obtaining the Company Stockholder Approval and subject to Section 4.3(b), the Board of Directors of the Company shall recommend to the Company's stockholders that they affirmatively vote for the adoption of this AgreementAgreement (the "Company Recommendation"). The Company shall solicit from the holders of Company Common Stock proxies in favor of adoption of this Agreement and shall take all other lawful action necessary and desirable to obtain the Company Stockholder Approval. Once the Company Stockholders Meeting has been duly called and noticed, the Company shall not postpone or adjourn (other than for the absence of a quorum, and then only to the nearest possible future date) the Company Stockholders Meeting without Parent's written consent. Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to the first sentence of this Section 5.10(b)5.1(d) shall not be affected by the making, each party commencement, public announcement, public disclosure, submission, receipt or communication to the Company or its stockholders or professional advisors or representatives of any Company Takeover Proposal. Notwithstanding any Change in the Company Recommendation or anything in this Agreement to the contrary, this Agreement shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation. The Company shall coordinate and cooperate with Parent with respect to the timing of the Company Stockholders Meeting and the Parent Stockholder Meeting, and shall take all steps necessary to ensure that they are convened and held on the same date or as nearly proximate to one another as reasonably practicable. 57
(ie) Parent shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold the Parent Stockholders Meeting in accordance with the FBCA and its articles of incorporation and by-laws, as applicable, for the purpose of obtaining the Parent Stockholder Approval, and the Board of Directors of Parent shall make all filings (if any) and give all notices (if any) required recommend to be made and given by such party in connection with its shareholders that they affirmatively vote to approve the issuance of Parent Common Stock pursuant to the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. 5.1 Preparation of the Form S-4, Proxy Statement; Stockholders Meeting.
(a) Subject to Section 5.10(b)As promptly as practicable following the date of this Agreement, Parent Newco and Company shall prepare, and Newco shall file with the SEC, the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Newco and Company shall use all reasonable efforts to takehave the Form S-4 declared effective under the Securities Act, or cause and for the Proxy Statement to be takencleared under the Exchange Act, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreementas promptly as practicable after such filing. Without limiting any other provision hereinabove contained, the generality of Form S-4 and the foregoingProxy Statement will contain, but subject to Section 5.10(b)without limitation, each party to this Agreement such information and disclosure reasonably requested by either Newco or Company so that (i) the Form S-4 conforms in both form and substance to the requirements of the Securities Act, and (ii) the Proxy Statement conforms in both form and substance to the requirements of the Exchange Act. Company shall make all filings use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(if anyb) and give all notices If at any time prior to the Effective Time there shall occur (if anyi) any event with respect to Company or any of its Subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Newco, or with respect to information supplied by Newco for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be made described in an amendment of, or a supplement to, the Form S-4 or the Proxy Statement, such event shall be so described, and given such amendment or supplement shall be promptly filed with the SEC and, as required by such party law, disseminated to the stockholders of Company.
(c) Each of Company and Newco shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and the other transactions contemplated by hereby or for additional information and shall supply the other with copies of all correspondence between Company or any of its representatives, or Newco or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. Company and Newco shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. Company and Newco shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining Company Stockholder Approval and subject to Section 4.3, the Board of Directors of Company shall recommend to Company’s stockholders the approval and adoption of this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of and the other transactions contemplated hereby (the “Company Recommendation”); provided, however, that Company’s Board of Directors shall not be required to make such Company Recommendation to the extent that it is permitted to effect a Change in Company Recommendation pursuant to Section 4.3. Without limiting the generality of the foregoing, Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to Company of any Company Takeover Proposal. Notwithstanding any Change in Company Recommendation, unless otherwise directed in writing by Newco, this Agreement and the Merger shall be submitted to the stockholders of Company at Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve Company of such obligation, provided, however, that if the Board of Directors of Company shall have effected a Change in Company Recommendation in accordance with this Agreement, and then in submitting this Agreement to Company’s stockholders, the Board of Directors of Company may submit this Agreement to Company’s stockholders without recommendation (iii) shall use all reasonable efforts although the resolutions adopting this Agreement as of the date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to lift any restraint, injunction Company’s stockholders in the Proxy Statement or other legal bar an appropriate amendment or supplement thereto to the Mergerextent required by law. The Company If required by applicable law or stock exchange requirements, or if Parent elects in its discretion to submit this Agreement to its stockholders or Newco stockholders for approval, Parent and/or Newco, as applicable, shall submit this Agreement to their respective shareholders for approval at a special meeting to be held as promptly deliver as practicable following effectiveness of the Form S-4 and on the timing described in Section 5.1(e), and by approving execution of this Agreement the Board of Directors of Parent agrees that it shall, at the time any proxy statement soliciting approval of this Agreement and the transactions contemplated hereby is mailed to Parent a copy the stockholders of each Parent, recommend that Parent’s stockholders vote for such approval, and it shall cause the Board of Directors of Newco to recommend that Newco’s stockholder vote for such approval; provided that Parent’s determination as to whether it shall submit this Agreement to its and/or Newco’s stockholders for approval shall be made prior to the initial filing made, each such notice given and each such Consent obtained by of the Company during the Pre-Closing PeriodForm S-4.
(be) Notwithstanding anything Company, Newco and Parent shall coordinate and cooperate with respect to the contrary contained in this Agreementtiming of their respective stockholders meeting, Parent and shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) use reasonable best efforts to hold separate or cause any each of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any such meetings within five business days of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationseach other.
Appears in 1 contract
Sources: Merger Agreement (Partners Trust Financial Group Inc)
Additional Agreements. Section 5.1 Preparation of the Form S-4 Proxy Statement; Stockholders Meeting.
(a) Subject Form S-4 Proxy Statement. As soon as practicable following the date of this Agreement, the Company and Parent shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use reasonable best efforts to Section 5.10(b), Parent and have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. The Company shall use all reasonable best efforts to take, or cause the Proxy Statement to be taken, all actions necessary mailed to consummate the Merger and make Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other transactions contemplated by this Agreement. Without limiting the generality than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if anyprocess) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the -34- Merger and the Company shall furnish all information concerning the Company and the holders of the Company Common Stock as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and given no filing of, or amendment or supplement to the Proxy Statement will be made by such the Company, in each case, without providing the other party and its respective counsel the reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to for offering or sale in any applicable Legal Requirement or Contractjurisdiction, or otherwise) any request by such party in connection with the Merger SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of the other transactions contemplated by this Agreementtheir respective affiliates, and (iii) shall use all reasonable efforts to lift any restraintofficers or directors, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained should be discovered by the Company during the Pre-Closing Period.
(b) Notwithstanding anything or Parent which should be set forth in an amendment or supplement to the contrary contained in this AgreementForm S-4 or the Proxy Statement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause so that any of its subsidiaries such documents would not include any misstatement of a material fact or omit to dispose of state any assetsmaterial fact necessary to make the statements therein, or to commit to cause any in light of the Acquired Corporations circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information must be promptly filed with the SEC and, to dispose of any assets; (ii) the extent required by Law, disseminated to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any the stockholders of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsCompany.
Appears in 1 contract
Sources: Merger Agreement (CTS Corp)
Additional Agreements. (a) Subject to Section 5.10(b), Preparation of S-4 and the Joint Proxy Statement. Parent and the Company shall use all reasonable efforts to takewill, or cause to be takenas promptly as practicable, all actions necessary to consummate (i) jointly prepare and will file with the SEC the Joint Proxy Statement in connection with the votes of the stockholders of the Company and shareholders of Parent in respect of the Merger and make effective other matters related thereto, and (ii) Parent will file with the SEC the S-4 in connection with the registration under the Securities Act of the shares of Parent Common Stock issuable upon conversion of the Shares and the other transactions contemplated by this Agreementhereby, in which the Joint Proxy Statement will be included as a prospectus. Without limiting Parent and the generality Company will, and will cause their accountants and lawyers to, use their reasonable best efforts to have or cause the S-4 to be declared effective as promptly as practicable after filing with the SEC, including causing their accountants to deliver necessary or required instruments such as opinions, consents and certificates, and will take any other action required or necessary to be taken under federal or state securities Laws or otherwise in connection with the registration process (other than qualifying to do business in any jurisdiction which it is not now so qualified or filing a general consent to service of process in any jurisdiction). The Company and Parent shall, as promptly as practicable after the receipt thereof, provide to the other party copies of any written comments and advise the other party of any oral comments in respect of the foregoingJoint Proxy Statement or the S-4 received from the staff of the SEC. Each of the Company and Parent will provide the other with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement prior to filing with the SEC and will provide each other with a copy of all such filings with the SEC. Parent will provide the Company with a reasonable opportunity to review and comment on any amendment or supplement on the S-4 prior to filing with SEC and will provide the Company with a copy of all such filings with the SEC. Parent will advise the Company, but subject to Section 5.10(b)promptly after it receives notice thereof, each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the other transactions contemplated by this Agreement, (ii) shall SEC for additional information. Each of the Company and Parent will use all its reasonable best efforts to obtain each Consent (if any) required cause the Joint Proxy Statement to be obtained (pursuant mailed to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with its stockholders at the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Periodearliest practicable date.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. SECTION 6.1. Preparation of S-4 and Joint Proxy Statement; Stockholders Meetings.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Joint Proxy Statement and Parent shall file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use their reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Parent, Merger Sub and the Company will cooperate with each other in the preparation of the Joint Proxy Statement and the Form S-4; without limiting the generality of the foregoing, Parent and Merger Sub, on the one hand, and the Company, on the other hand, will furnish to each other the information relating to the party furnishing such information required by the Exchange Act or the Securities Act, as applicable, to be set forth in the Joint Proxy Statement and the Form S-4, and Company and its counsel shall be given the opportunity to review and comment on the Joint Proxy Statement and the Form S-4 prior to the filing thereof with the SEC. Parent, Merger Sub and the Company each agree to use its reasonable best efforts, after consultation with the other parties hereto, to respond promptly to any comments made by the SEC with respect to the Joint Proxy Statement and the Form S-4. The Company and Parent will use their reasonable best efforts to cause the Joint Proxy Statement to be mailed to their stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. No filing of, or amendment or supplement (including by incorporation by reference) to, or correspondence to the SEC or its staff with respect to, the Form S-4 or the Joint Proxy Statement will be made by Parent or the Company, without the approval of both parties, which approval shall not be unreasonably withheld or delayed; provided that with respect to documents filed by a party which are incorporated by reference in the Form S-4 or Joint Proxy Statement, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, or this Agreement or the transactions contemplated hereby. Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4, Joint Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company and Parent.
(b) The Company shall, as soon as practicable after the date hereof, and in accordance with the Company's articles of incorporation and bylaws and applicable law, establish a record date (which will be as soon as practicable after the date hereof) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") solely for the purpose of considering and taking action upon this Agreement (it being understood that, notwithstanding anything to the contrary set forth in this Agreement, the Company shall have no obligation to convene the Company Stockholders Meeting unless the recommendation of the Board described in this Section 6.1(b) has been made and remains in effect). Once the Company Stockholders Meeting has been called and noticed, the Company shall not postpone or adjourn the Company Stockholders Meeting without the consent of Parent, which shall not be unreasonably withheld or delayed (other than (i) for the absence of a quorum, (ii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which it believes in good faith is necessary under applicable law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company's stockholders prior to the Company Stockholders Meeting, or (iii) in the event the Board of Directors of the Company withdraws, modifies or changes in accordance with the terms of this Agreement its recommendation that this Agreement and the Merger are in the best interests of the Company; provided that in the event that the Company Stockholders Meeting is delayed to a date after the Termination Date (as defined in Section 8.1(b)) as a result of either (i) or (ii) above, then the Termination Date shall be extended to the fifth business day after such date). The Board of Directors of the Company shall declare that this Agreement and the Merger are advisable and in the best interests of the Company and recommend that this Agreement be approved by the stockholders of the Company and include in the Form S-4 and the Joint Proxy Statement a copy of such recommendations; provided that the Board of Directors of the Company may withdraw, modify or change such recommendation if but only if (i) it believes in good faith, based on such matters as it deems relevant, and after receiving the advice of the Company's financial advisors, that a Superior Proposal (as defined in Section 6.10(b) hereof) has been made and (ii) it has determined in good faith, after consultation with outside counsel, that withdrawal, modification or change of such recommendation is, in the good faith judgment of the Board of Directors of the Company, required by the Board of Directors to comply with its fiduciary duties imposed by applicable law. Unless the Board of Directors of the Company has withdrawn its recommendation of this Agreement in compliance with this Section 6.1(b), the Company shall use its reasonable best efforts to solicit from stockholders of the Company proxies in favor of the adoption of this Agreement and shall take all other action necessary or advisable to secure the vote or consent of stockholders required by applicable law to effect the Merger.
(c) Parent shall, as soon as practicable after the date hereof, and in accordance with the Parent's certificate of incorporation and bylaws and applicable law, establish a record date (which will be as soon as practicable after the date hereof) for, duly call, give notice of, convene and hold a meeting of its stockholders (the "Parent Stockholders Meeting") for the purpose of considering and taking action upon the Share Issuance. Once the Parent Stockholders Meeting has been called and noticed, Parent shall not postpone or adjourn the Parent Stockholders Meeting without the consent of the Company, which shall not be unreasonably withheld or delayed (other than (i) for the absence of a quorum or (ii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which it believes in good faith is necessary under applicable law and for such supplemental or amended disclosure to be disseminated and reviewed by the Parent's stockholders prior to the Parent Stockholders Meeting; provided that in the event that the Parent Stockholders Meeting is delayed to a date after the Termination Date (as defined in Section 8.1(b)), then the Termination Date shall be extended to the fifth business day after such date). Parent shall, through its Board of Directors, recommend such approval by the stockholders of Parent and include in the Form S-4 and the Joint Proxy Statement a copy of such recommendation.
(d) The Company shall use all reasonable efforts to take, or cause to be takendelivered to Parent a letter of KPMG LLP, all actions necessary the Company's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to consummate the Merger Parent, in form and make effective the other transactions contemplated substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party independent public accountants in connection with registration statements similar to the Merger and the other transactions contemplated by this Agreement, Form S-4.
(iie) Parent shall use all reasonable efforts to obtain each Consent (if any) required cause to be obtained (pursuant delivered to any applicable Legal Requirement or Contractthe Company a letter of Ernst & Young LLP, or otherwise) the Company's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to the Company, in form and substance reasonably satisfactory to the Company and customary in scope and substance for letters delivered by such party independent public accountants in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar registration statements similar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing PeriodForm S-4.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. SECTION 6.01. Preparation of the Form S-4 and the Proxy Statement; ---------------------------------------------------- Shareholders Meetings; Adoption by Sole Shareholder.
(a) Subject to Section 5.10(b)The Company, Parent ---------------------------------------------------- and Newco shall prepare and file with the SEC the Proxy Statement in preliminary form and Parent, the Company and Newco shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company, Parent and Newco shall use its reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of the Company, Parent and Newco shall use its reasonable best efforts to cause the Proxy Statement to be mailed to its respective shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Newco shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities laws in connection with the issuance of Newco Common Stock in the Merger and under the Company Stock Plans and the Parent Stock Plans, and the Company and Parent shall furnish all information concerning the Company or Parent, as applicable, and the holders of the Company Common Stock or Parent Common Stock and rights to acquire Company Common Stock or Parent Common Stock pursuant to the Company Stock Plans or the Parent Stock Plans as may be reasonably requested in connection with any such action. The parties shall notify each other promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Form S-4 or for additional information and shall supply each other with copies of all correspondence between such party or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement, the Form S-4 or the Merger.
(b) If prior to the Merger Effective Time any event occurs with respect to the Company or any Company Subsidiary or any change occurs with respect to information supplied by or on behalf of the Company for inclusion in the Proxy Statement or the Form S-4 which, in each case, is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, the Company shall promptly notify Parent of such event, and the Company shall cooperate with Parent and Newco in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement and Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the Company's shareholders and to Parent's shareholders.
(c) If prior to the Merger Effective Time any event occurs with respect to Parent or any Parent Subsidiary or any change occurs with respect to information supplied by or on behalf of Parent for inclusion in the Proxy Statement or the Form S-4 which, in each case, is required to be described in an amendment of, or a supplement to, the Proxy Statement or the Form S-4, Parent shall promptly notify the Company of such event, and Parent shall cooperate with Company in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement and the Form S-4 and, as required by law, in disseminating the information contained in such amendment or supplement to the Company's shareholders and to Parent's shareholders.
(d) The Company shall, as soon as practicable following effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its shareholders (the "Company Shareholders Meeting") for the purpose of seeking the ---------------------------- Company Shareholder Approval. The Company shall use all its reasonable best efforts to take, or cause the Proxy Statement to be takenmailed to the Company's shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Subject to Section 5.02(b), all actions necessary the Company shall, through its Board of Directors, recommend to consummate its shareholders that they give the Merger and make effective the other transactions contemplated by this AgreementCompany Shareholder Approval. Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to the first two sentences of this Section 6.01(d) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Competing Transaction.
(e) Parent shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the "Parent Shareholders Meeting") for the purpose of seeking the --------------------------- Parent Shareholder Approval. The Parent shall use its reasonable best efforts to cause the Proxy Statement to be mailed to the Parent's shareholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Subject to Section 5.10(b5.03(b), each party Parent shall, through its Board of Directors, recommend to its shareholders that they give the Parent Shareholder Approval. Without limiting the generality of the foregoing, Parent agrees that its obligations pursuant to the first two sentences of this Agreement (iSection 6.01(e) shall make all filings not be affected by the commencement, public proposal, public disclosure or communication to Parent of any Parent Competing Transaction.
(if anyf) and give all notices (if any) required The Company shall use its reasonable best efforts to cause to be made delivered to Parent a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Company's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and given addressed to Parent, in form and substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by such party independent public accountants in connection with registration statements similar to the Merger and the other transactions contemplated by this Agreement, Form S-4.
(iig) Parent shall use all its reasonable best efforts to obtain each Consent (if any) required cause to be obtained (pursuant delivered to any applicable Legal Requirement or Contractthe Company a letter of PricewaterhouseCoopers LLP, or otherwise) Parent's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective and addressed to the Company, in form and substance reasonably satisfactory to the Company and customary in scope and substance for letters delivered by such party independent public accountants in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar registration statements similar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing PeriodForm S-4.
(bh) Notwithstanding anything to the contrary contained in Parent, as sole shareholder of Newco, shall adopt this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Sources: Agreement and Plan of Exchange and Merger (Commonwealth Edison Co)
Additional Agreements. Section 7.1 Preparation of the Form S-4.
(a) Subject to Section 5.10(b)As promptly as practicable following the date of this Agreement, Parent shall prepare and as promptly as practicable following the Company performance of the covenant contained in Section 7.9(c) hereof Parent shall file with the SEC the Form S-4. Parent shall use all reasonable efforts to takehave the Form S-4, declared effective under the Securities Act as promptly as practicable after such filing.
(b) Each of the Company, Majority Shareholder and Parent covenants that none of the information supplied or cause to be takensupplied by it for inclusion or incorporation by reference in the Form S-4 will, all actions at the time the Form S-4 is filed with the SEC, at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to consummate make the Merger and make effective statements therein, in light of the other transactions contemplated by this Agreementcircumstances under which they are made, not misleading. Without limiting The Form S-4 will comply as to form in all material respects with the generality requirements of the Securities Act. Notwithstanding the foregoing, but subject no representation or covenant is made by Parent with respect to Section 5.10(b), each party statements made or incorporated by reference based on information supplied in writing by the Company or Majority Shareholder for inclusion or incorporation by reference in the Form S-4. If at any time prior to this Agreement the Effective Time there shall occur (i) shall make all filings any event with respect to the Company or any of its Subsidiaries, or with respect to other information supplied by Company or Majority Shareholder for inclusion in the Form S-4 or (if anyii) and give all notices (if any) any event with respect to Parent which event is required to be made described in an amendment of, or a supplement to the Form S-4, such event shall be so described, and given such amendment or supplement shall be promptly filed with the SEC and, as required by such party applicable federal securities laws, disseminated to the shareholders of Company.
(c) Parent shall promptly notify the Company of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and other Transaction or for additional information and shall supply the Company with copies of all correspondence between Parent or any of its representatives, on the one hand, and the SEC or its staff or any other appropriate government official, on the other transactions contemplated by this Agreementhand, (ii) with respect thereto. Parent shall use all their respective reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant respond to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any comments of the other transactions contemplated by this AgreementSEC with respect to the Form S-4 as promptly as practicable (and to the extent that Parent's ability to so respond depends upon the response of the Company or Majority Shareholder, in turn, the Company and (iii) shall Majority Shareholder each agrees to use all its reasonable efforts to lift any restraint, injunction or other legal bar permit Parent to the Mergerso respond). The Company and Majority Shareholder shall promptly deliver provide Parent with all information necessary in order to Parent a copy of each prepare the Form S-4 and any information such filing made, each such notice given and each such Consent obtained by party may obtain that could necessitate amending any the Company during the Pre-Closing PeriodForm S-4.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Trendwest Resorts Inc)
Additional Agreements. 5.1 PREPARATION OF THE PROXY STATEMENT; STOCKHOLDERS MEETING
(a) Subject to Section 5.10(b)As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare and file with the SEC the Proxy Statement. The Company shall promptly notify the Parent of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and shall promptly provide copies of all correspondence between it and its representatives, on the one hand, and the SEC and its staff, on the other hand. Each of the Company and the Parent shall use all commercially reasonable efforts to take, or respond as promptly as practicable to any comments of the SEC with respect thereto and to cause the Proxy Statement to be takenmailed to the Company's stockholders as promptly as practicable after all such SEC comments have been resolved. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide the Parent with a reasonable opportunity to review and comment on such document or response, (ii) shall include in such document or response all actions necessary comments reasonably proposed by the Parent and (iii) shall not file or mail such document or respond to consummate the SEC prior to receiving the Parent's approval, which approval shall not be unreasonably withheld, delayed or conditioned.
(b) The Company shall, as promptly as practicable following the date of this Agreement, establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the "STOCKHOLDERS MEETING") for the purpose of obtaining Stockholder Approval, regardless of whether the Board of Directors of the Company determines at any time that this Agreement or the Merger and make effective is no longer advisable or recommends that the other transactions contemplated by stockholders of the Company reject this Agreement or the Merger, in all cases subject to its rights under Section 4.2(b). The Company shall cause the Stockholders Meeting to be held as promptly as practicable following the date of this Agreement. The Company shall, through its Board of Directors, recommend to its stockholders that they adopt this Agreement, and shall include such recommendation in the Proxy Statement, in each case subject to its rights under Section 4.2(b). Without limiting the generality of the foregoing, but subject the Company agrees that its obligations pursuant to this Section 5.10(b5.1(b) to take actions to and hold the Stockholders Meeting for the purpose of obtaining Stockholder Approval shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Takeover Proposal.
(c) The Company agrees that none of the information included or incorporated by reference in the Proxy Statement will (except to the extent revised or superseded by amendments or supplements contemplated hereby), each party at the date the Proxy Statement is filed with the SEC or mailed to this Agreement (i) shall make all filings (if any) and give all notices (if any) the Company's stockholders or at the time of the Stockholders Meeting, or at the time of any amendment or supplement thereof, contain any untrue statement of a material fact or omit to state any material fact required to be made and given by such party stated therein or necessary in connection order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement will comply as to form in all material respects with the Merger requirements of the Exchange Act and the other transactions contemplated by this Agreement, rules and regulations promulgated thereunder.
(iid) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver retain an agent, on terms or conditions acceptable to Parent a copy the Parent, for the purpose of each such filing made, each such notice given and each such Consent obtained by soliciting proxies on behalf of the Company during for the Pre-Closing PeriodStockholders Meeting.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. Section 5.01 Preparation of the Form S-4 and the Company Proxy Statement; Company Stockholders' Meeting.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, Parent and the Company shall jointly prepare and file with the SEC a document or documents that will constitute the Company Proxy Statement and the Form S-4. Each of Parent and the Company shall use all reasonable efforts to takehave the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, or cause including, in the case of the Company, providing all information with respect to the Company to be takenincluded in the Form S-4. The Company will use all reasonable efforts to cause the Form S-4 and Company Proxy Statement to be mailed to Company's stockholders, and the Company and Parent will use all actions necessary reasonable efforts to consummate obtain Company Stockholder Approval and Parent Stockholder Approval, respectively, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and the Company shall furnish all information concerning the Company and the holders of capital stock of the Company as may be reasonably requested in connection with any such action. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Form S-4 or the Company Proxy Statement will be made by either Parent or the Company, without providing the other a reasonable opportunity to review and comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction. Each of Parent and the Company shall promptly inform the other of any request by the SEC for amendments or supplements to the Form S-4 or the Company Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information and will, as promptly as practicable, provide to the Company or Parent, as the case may be, copies of all correspondence and filings with the SEC with respect to the Form S-4 or the Company Proxy Statement, as applicable. If at any time prior to the Effective Time any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, should be discovered by Parent or the Company which should be set forth in an amendment or supplement to any of the Form S-4 or the Company Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make effective the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company. No amendment or supplement to the information supplied by the Company for inclusion in the Form S-4 shall be made without the approval of the Company, which approval shall not be unreasonably withheld or delayed. For purposes of Sections 5.01, 3.01(d) and 3.02(f), information concerning or related to the Company, its Subsidiaries or their respective Affiliates will be deemed to have been provided by the Company and information concerning or related to Parent, its Subsidiaries or their respective Affiliates will be deemed to have been provided by Parent.
(b) The Company shall, as soon as practicable following the date of this Agreement, establish a record date (which shall be as soon as practicable following the date of this Agreement) for, duly call, give notice of, convene and hold the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval and shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement, the Merger and the other transactions contemplated by this Agreementhereby. Without limiting the generality of the foregoing, foregoing but subject to its rights to terminate this Agreement pursuant to Sections 4.02(b) and 7.01, the Company agrees that its obligations pursuant to the first sentence of this Section 5.10(b)5.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Takeover Proposal.
(c) Parent shall, as soon as practicable following the date of this Agreement, take all action necessary in accordance with the DGCL and its Certificate of Incorporation and Bylaws and take all other action necessary to obtain any necessary Parent Stockholder Approval and shall, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement and the transactions contemplated hereby. Without limiting the generality of the foregoing but subject to its rights to terminate this Agreement pursuant to Section 7.01, Parent agrees that its obligations pursuant to the first sentence of this Section 5.01(c) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Takeover Proposal.
Section 5.02 Letters of the Company's Accountants. If requested, the Company shall use reasonable efforts to cause to be delivered to Parent two letters from the Company's independent accountants, one dated a date within two Business Days before the date on which the Form S-4 shall become effective and one dated a date within two Business Days before the Closing Date, each party addressed to this Agreement (i) shall make all filings (if any) Parent, in form and give all notices (if any) required substance reasonably satisfactory to be made Parent and given customary in scope and substance for comfort letters delivered by such party independent public accountants in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar registration statements similar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing PeriodForm S-4.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Sources: Merger Agreement (Allied Riser Communications Corp)
Additional Agreements. SECTION 5.1 Preparation of Form S-4 and the Proxy Statement; Stockholders' Meetings.
(a) Subject As promptly as reasonably practicable after the execution of this Agreement, (i) the Company and Parent shall prepare and file with the SEC a joint proxy statement/registration statement relating to Section 5.10(b)the meetings of the Company's stockholders to be held to obtain the Company Stockholder Approval and of the Parent's stockholders to obtain the Parent Stockholder Approval (together with any amendments thereof or supplements thereto, the "PROXY STATEMENT") and (ii) Parent shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments thereto, the "FORM S-4") in which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the stockholders of the Company pursuant to the Merger. Each of Parent and the Company shall use all its commercially reasonable efforts to takecause the Form S-4 to become effective as promptly as practicable, and shall take all or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) any action required to be made and given by such party under any applicable federal or state securities laws in -28- 33 connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (issuance of shares of Parent Common Stock pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. Each of Parent and the Company shall furnish all information concerning itself to the other as the other may reasonably request in connection with such actions and the preparation of the Form S-4 and Proxy Statement. The Company shall promptly deliver authorizes Parent to utilize in the Form S-4 and in all such state filed materials, the information concerning the Company and its subsidiaries provided to Parent in connection with, or contained in, the Proxy Statement. Parent promptly will advise the Company when the Form S-4 has become effective and of any supplements or amendments thereto, and the Company shall not distribute any written material that would constitute, as advised by counsel to the Company, a copy "PROSPECTUS" relating to the Merger or the Parent Common Stock within the meaning of each such filing madethe Securities Act or any applicable state securities law without the prior written consent of Parent. As promptly as practicable after the Form S-4 shall have become effective, each such notice given and each such Consent obtained by of the Company during and Parent shall mail the Pre-Closing PeriodProxy Statement to its respective stockholders.
(b) Notwithstanding anything Parent agrees promptly to advise the Company if at any time prior to the contrary contained respective meetings of stockholders of Parent or the Company any information provided by it in the Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide the Company with the information needed to correct such inaccuracy or omission. Parent will furnish the Company with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to Parent and its subsidiaries, to comply with applicable law after the mailing thereof to the stockholders of Parent or the Company.
(c) The Company agrees promptly to advise Parent if at any time prior to the respective meetings of stockholders of Parent or the Company any information provided by it in the Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide Parent with the information needed to correct such inaccuracy or omission. The Company will furnish Parent with such supplemental information as may be necessary in order to cause the Proxy Statement, insofar as it relates to the Company and its subsidiaries, to comply with applicable law after the mailing thereof to stockholders of Parent or the Company.
(d) As soon as reasonably practicable following the date of this AgreementAgreement but taking into account the likely timing of obtaining regulatory approvals to complete the transactions contemplated herein, each of the Company and Parent shall not have any obligation under this Agreement: (i) to dispose or cause any call and hold a meeting of its subsidiaries to dispose respective stockholders (the "COMPANY STOCKHOLDERS' MEETING" and the "PARENT STOCKHOLDERS' MEETING," respectively), for the purpose of any assetsobtaining the Company Stockholder Approval and the Parent Stockholder Approval, or to commit to cause any respectively. Each of the Acquired Corporations Company and Parent shall use its commercially reasonably efforts to dispose solicit from its stockholders proxies, and shall take all other action necessary or advisable to secure the vote or consent of any assets; (ii) stockholders required by applicable law or otherwise to discontinue or cause any obtain the Company Stockholder Approval and the Parent Stockholder Approval, respectively, and through its respective Board of Directors, shall recommend to its subsidiaries to discontinue offering any product, or to commit to cause any respective stockholders the obtaining of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make availableCompany Stockholder Approval and the Parent Stockholder Approval, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationsrespectively.
Appears in 1 contract
Additional Agreements. The Company agrees that, upon the occurrence and during the continuance of a Default hereunder, it will, at any time and from time to time, upon the written request of the Trustee, use its best efforts to take or to cause the issuer of the Pledged Shares and any other securities distributed in respect of the Pledged Shares (acollectively with the Pledged Shares, the "Pledged Securities") Subject to Section 5.10(btake such action and prepare, distribute or file such documents, as are required or advisable in the reasonable opinion of counsel for the Trustee to permit the public sale of such Pledged Securities. The Company further agrees to indemnify, defend and hold harmless the Trustee, each Holder, any underwriter and their respective officers, directors, affiliates and controlling persons from and against all loss, liability, expenses, costs of counsel (including reasonable fees and expenses of legal counsel to the Trustee), Parent and claims (including the costs of investigation) that they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except insofar as the same may have been caused by any untrue statement or omission based upon information furnished in writing to the Company shall or the issuer of such Pledged Securities by the Trustee or any Holder expressly for use all reasonable therein. The Company further agrees, upon such written request referred to above, to use its best efforts to takequalify, file or register, or cause the issuer of such Pledged Securities to qualify, file or register, any of the Pledged Securities under the Blue Sky or other securities laws of such states as may be requested by the Trustee and keep effective, or cause to be takenkept effective, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoingsuch qualifications, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Mergerregistrations. The Company shall promptly deliver will bear all costs and expenses of carrying out its obligations under this Section 11.13. The Company acknowledges that there is no adequate remedy at law for failure by it to Parent a copy comply with the provisions of each this Section 11.13 and that such filing madefailure would not be adequately compensable in damages, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary therefore agree that their agreements contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsSection 11.13 may be specially enforced.
Appears in 1 contract
Additional Agreements. 5.1 PREPARATION OF THE PROXY STATEMENT AND SCHEDULE 13E-3.
(a) Subject The Company shall as promptly as practicable prepare and file a proxy or information statement relating to Section 5.10(b)the Stockholders' Meeting (together with all amendments, Parent supplements and exhibits thereto, the "Proxy Statement") with the SEC and will diligently respond to any comments of the SEC or its staff and cause the Proxy Statement to be mailed to the Company's stockholders at the earliest practical time. The Company shall use all reasonable its best efforts to take, or obtain from the Financial Advisor an opinion (that shall not at the time of mailing of the Proxy Statement to the stockholders of the Company be subject to adverse comment by the SEC) as to the fairness of the transactions contemplated hereby and to cause the same to be taken, all actions necessary reproduced and furnished to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party its stockholders in connection with the Merger Proxy Statement. The Company will notify Levy Acquisition Co. promptly of the receipt of any comments from the SEC or its staff and of any request by the other transactions contemplated by this Agreement, (ii) shall use SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Levy Acquisition Co. with copies of all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with correspondence between the Merger Company or any of its representatives, on the one hand, and the SEC or its staff, on the other transactions contemplated by this Agreementhand, and (iii) shall use all reasonable efforts with respect to lift any restraint, injunction the Proxy Statement or other legal bar to the Merger. If at any time prior to the Stockholders' Meeting there shall occur any event that the Company determines must or should be set forth in an amendment or supplement to the Proxy Statement, the Company will promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall promptly deliver will not mail any Proxy Statement, or any amendment or supplement thereto, to Parent a copy which Levy Acquisition Co. reasonably objects. The Company hereby consents to the inclusion in the Proxy Statement of each such filing madethe recommendation of the Board described in Section 5.2, each such notice given subject to any modification, amendment or withdrawal thereof, and each such Consent obtained by represents that the Company during Independent Advisor has, subject to the Pre-Closing Periodterms of its engagement letter with the Company, consented to the inclusion of references to its opinion in the Proxy Statement.
(b) Notwithstanding anything The Company and Levy Acquisition Co. shall together prepare and file a Transaction Statement on Schedule 13E-3 (together with all amendments and exhibits thereto, the "Schedule 13E-3") under the Exchange Act. Levy Acquisition Co. shall furnish all information concerning it, its affiliates and the holders of its capital stock required to be included in the Schedule 13E-3 and, after consultation with each other, shall respond promptly to any comments made by the SEC with respect to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any Schedule 13E-3. As part of the Acquired Corporations disclosures required to dispose of any assets; (ii) be included in the Schedule 13E-3 with respect to discontinue or cause any of its subsidiaries Levy Acquisition Co., Levy Acquisition Co. shall state that it believes the Merger Consideration is fair to discontinue offering any product, or to commit to cause any all of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any stockholders of the Acquired Corporations to license or otherwise make available to any Person any technology, software or Company other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after than the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsLevy Stockholders.
Appears in 1 contract
Sources: Merger Agreement (Oriole Homes Corp)
Additional Agreements. (a) Subject to Section 5.10(b), Parent 5.1 Preparation of S-4 and the Company Proxy Statement. Pogo and Arch shall promptly prepare and file with the SEC the Proxy Statement and Pogo shall prepare and file with the SEC the S-4, in which the Proxy Statement will be included as a prospectus. Each of Pogo and Arch shall use all reasonable efforts to take, or have the S-4 declared effective under the Securities Act as promptly as practicable after such filing. Each of Arch and Pogo shall use all reasonable efforts to cause the Proxy Statement to be taken, all actions necessary mailed to consummate stockholders of Arch at the Merger and make effective the other transactions contemplated by this Agreementearliest practicable date. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) Pogo shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement all necessary state securities laws or Contract"blue sky" permits, or otherwise) by such party approvals and registrations in connection with the issuance of Pogo Common Stock in the Merger and upon the exercise of Arch Stock Options (as defined in Section 5.8), and Arch shall furnish all information concerning Arch and the holders of Arch Common Stock and Convertible Preferred Stock as may be reasonably requested in connection with obtaining such permits, approvals and registrations. If at any time prior to the Effective Time any event with respect to Arch or any of its Subsidiaries, or with respect to other information supplied by Arch for inclusion in the other transactions contemplated by this AgreementProxy Statement or the S-4, shall occur which is required to be described in an amendment of, or a supplement to, the Proxy Statement or the S-4, such event shall be so described, and (iii) such amendment or supplement shall use all reasonable efforts be promptly filed with the SEC and, as required by law, disseminated to lift any restraintthe stockholders of Arch. The Proxy Statement and the S-4, injunction insofar as it relates to Arch or its Subsidiaries or other legal bar information supplied by Arch for inclusion therein, will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder. If at any time prior to the Merger. The Company shall promptly deliver Effective Time any event with respect to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose Pogo or cause any of its subsidiaries to dispose of any assetsSubsidiaries, or with respect to commit other information supplied by Pogo or Sub for inclusion in the S-4, shall occur which is required to cause any be described in an amendment of, or a supplement to, the S-4, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC. The S-4, insofar as it relates to Pogo, Sub or other Subsidiaries of Pogo or other information supplied by Pogo or Sub for inclusion therein, will comply as to form in all material respects with the provisions of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of Exchange Act and the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationsrules and regulations thereunder.
Appears in 1 contract
Additional Agreements. Section 5.1. PREPARATION OF THE FORM S-4 AND THE PROXY STATEMENT; STOCKHOLDERS MEETINGS
(a) As soon as practicable following the date of this Agreement, the Company and Parent shall prepare and file with the SEC the Proxy Statement and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Subject to Section 5.10(b)4.2, each of the Company and Parent shall use its reasonable best efforts to (i) have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and (ii) cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Parent Common Stock in the Merger and upon the exercise of Adjusted Options, and the Company shall use furnish all reasonable efforts information concerning the Company and the holders of Company Common Stock as may be reasonably requested in connection with any such action. The Form S-4 and the Proxy Statement shall comply as to takeform in all material respects with the applicable provisions of the Securities Act and the Exchange Act. The Company and Parent shall, or cause to be takenas promptly as practicable after receipt thereof, all actions necessary to consummate the Merger and make effective provide the other party copies of any written comments and advise the other party of any oral comments, with respect to the Proxy Statement received from the SEC. Parent shall provide the Company with a reasonable opportunity to review and comment on any amendment or supplement to the Form S-4 prior to filing such with the SEC, and shall provide the Company with a copy of all such filings made with the SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Proxy Statement or the Form S-4 shall be made without the approval of both parties, which approval shall not be unreasonably withheld or delayed; PROVIDED, that with respect to documents filed by a party which are incorporated by reference in the Form S-4 or Proxy Statement, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations or the transactions contemplated by this Agreement. No filing of, or amendment or supplement to, the Form S-4 shall be made by Parent, or to the Proxy Statement shall be made by the Company, without providing the other party the opportunity to review and comment thereon. Parent shall advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. Each party shall advise the other party, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, should be discovered by the Company or Parent which should be set 37 forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company and Parent.
(b) The Company shall, as soon as reasonably practicable, consistent with the process of clearing the Proxy Statement with the SEC and having the SEC declare the Form S-4 effective, all as provided in Section 5.1(a), establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the "COMPANY STOCKHOLDERS MEETING") for the purpose of obtaining the Company Stockholder Approval and shall take all lawful action to solicit adoption of this Agreement by the required Company Stockholder Approval. Unless the Company has terminated this Agreement pursuant to Section 7.1(f) hereof, the Company shall, through its Board of Directors, recommend to its stockholders adoption of this Agreement (the "COMPANY RECOMMENDATION"), and except as expressly permitted by this Agreement, shall not withdraw, amend or modify in a manner adverse to Parent its recommendation. The Company shall ensure that the Company Stockholders Meeting is called, noticed, convened, held and conducted, and that all proxies solicited in connection with the Company Stockholders Meeting are solicited, in compliance with all applicable Legal Provisions. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) the Company agrees that its obligation to duly call, give notice of, convene and give all notices (if any) hold a meeting of the holders of Company Common Stock, as required to be made and given by such party in connection with the Merger and the other transactions contemplated by this AgreementSection 5.1(b), shall not be affected by the withdrawal, amendment or modification of the Company Recommendation and (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (the Company agrees that its obligations pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iiiSection 5.1(b) shall use all reasonable efforts to lift any restraintnot be affected by the commencement, injunction public proposal, public disclosure or other legal bar communication to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired CorporationsTakeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (TMP Worldwide Inc)
Additional Agreements. Section 6.01 Schedule 13E-3.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, but in any event within fifteen (15) Business Days after the date hereof, the Company, Parent and Merger Sub shall jointly prepare and cause to be filed with the SEC a Rule 13e-3 transaction statement on Schedule 13E-3 (such Schedule 13E-3, as amended or supplemented, being referred to herein as the “Schedule 13E-3”). Each of the Company, Parent and Merger Sub shall use its reasonable best efforts to ensure that the Schedule 13E-3 complies in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. Each of the Company, Parent and Merger Sub shall use its reasonable best efforts to respond promptly to any comments of the SEC with respect to the Schedule 13E-3. Each of Parent and Merger Sub shall provide reasonable assistance and cooperation to the Company in the preparation, filing and mailing/distribution of the Schedule 13E-3 and the resolution of comments from the SEC. Upon its receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Schedule 13E-3, the Company shall use promptly notify Parent and Merger Sub and shall provide Parent with copies of all reasonable efforts to takecorrespondence between the Company and its representatives, or cause to be takenon the one hand, all actions necessary to consummate and the Merger SEC and make effective its staff, on the other transactions contemplated by this Agreementhand. Without limiting Prior to filing the generality Schedule 13E-3 (or any amendment or supplement thereto) or responding to any comments of the foregoingSEC with respect thereto, but subject to Section 5.10(b), each party to this Agreement the Company (i) shall make provide Parent and Merger Sub with a reasonable period of time to review and comment on such document or response and (ii) shall consider in good faith all filings additions, deletions or changes reasonably proposed by Parent in good faith.
(if anyb) Each of Parent, Merger Sub and give all notices the Company agrees, as to itself and its respective Affiliates or Representatives, that none of the information supplied or to be supplied by Parent, Merger Sub or the Company, as applicable, expressly for inclusion or incorporation by reference in the Schedule 13E-3 or any other documents filed or to be filed with the SEC in connection with the Transactions, will, as of the time such documents (if anyor any amendment thereof or supplement thereto) are mailed to the holders of Shares, contain any untrue statement of a material fact, or omit to state any material fact required to be made stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Sub and given by the Company further agrees that all documents that such party is responsible for filing with the SEC in connection with the Merger will comply as to form and substance in all material respects with the applicable requirements of the Securities Act, the Exchange Act and any other applicable Laws and that all information supplied by such party for inclusion or incorporation by reference in such document will not contain any untrue statement of a material fact, or omit to state any material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If at any time prior to the Effective Time, any information, fact or circumstance relating to the Company, Parent, Merger Sub or any of their respective Affiliates, or any of their respective officers or directors, is discovered that should be set forth in an amendment or supplement to the the Schedule 13E-3 so that such Schedule 13E-3 will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information, fact or circumstance shall promptly notify the other parties hereto and the Company shall file an appropriate amendment or supplement describing such information with the SEC and, to the extent required by applicable Law, disseminate such to the shareholders of the Company; provided, that prior to such filing, the Company and Parent, as the case may be, shall consult with each other transactions contemplated with respect to such amendment or supplement and shall afford the other party and their Representatives a reasonable opportunity to comment thereon.
(c) As soon as practicable after the SEC staff confirms that it has no further comments on the Schedule 13E-3 but in any event no later than three (3) days after such confirmation, the Company shall (i) mail/distribute or cause to be mailed/distributed the Schedule 13E-3 (together with the Plan of Merger) to the holders of Shares, including Shares represented by this AgreementADSs, as of the date of such distribution of the Schedule 13E-3 (the “Record Date”); and (ii) shall use all reasonable efforts instruct the Depositary to obtain each Consent (if anyA) required fix the Record Date as the record date for determining the holders of ADSs to whom the Schedule 13E-3 will be obtained mailed/distributed (pursuant to any applicable Legal Requirement or Contract, or otherwisethe “Record ADS Holders”) by such party in connection and (B) provide the Schedule 13E-3 (together with the Merger or any Plan of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained by the Company during the Pre-Closing Period.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationsall Record ADS Holders.
Appears in 1 contract
Sources: Merger Agreement (TDCX Inc.)
Additional Agreements. SECTION 6.01. PREPARATION OF THE FORM S-4 AND THE PROXY STATEMENT; STOCKHOLDER MEETINGS.
(a) Subject to Section 5.10(b)As soon as practicable following the date of this Agreement, Parent the Company shall prepare and file with the SEC the Proxy Statement and the Company and Parent shall prepare and Parent shall file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of the Company and Parent shall use all its reasonable efforts to take, or cause to be taken, all actions have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and keep the Form S-4 effective for so long as necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.10(b), each party to this Agreement (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement, and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall use its reasonable efforts to cause the Proxy Statement to be mailed to the stockholders of the Company as promptly deliver as practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action required to be taken under any applicable state securities Laws in connection with the issuance of shares of Parent Common Stock in the Merger, and the Company shall furnish all information concerning the Company and the holders of shares of Company Common Stock as may be reasonably requested by Parent in connection with any such action. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to the Proxy Statement will made by the Company, without providing the other party and its counsel a copy reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of each such filing madetheir respective Affiliates, each such notice given and each such Consent obtained directors or officers, should be discovered by the Company during or Parent which should be set forth in an amendment or supplement to either the Pre-Closing Period.
(b) Notwithstanding anything Form S-4 or the Proxy Statement, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the contrary contained in this Agreementextent required by Law, Parent shall not have any obligation under this Agreement: (i) disseminated to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.stockholders of
Appears in 1 contract
Sources: Merger Agreement (Mid Atlantic Medical Services Inc)
Additional Agreements. SECTION 6.01. Preparation of the Form S-4.
(a) Subject to Section 5.10(bAs promptly as reasonably practicable after the date of this Agreement (but in no event more than 20 Business Days after the date of this Agreement), Parent shall prepare, together with the Company, and the Company shall use all reasonable efforts to take, or cause to be takenfiled with the SEC a registration statement on Form S-4 pursuant to which the offer and sale of shares of Parent Common Stock in the Merger will be registered pursuant to the Securities Act, all actions which will include the proxy statement relating to the Company Shareholder Meeting (together with any amendments or supplements thereto, the “Form S-4”). Parent shall use its reasonable best efforts (i) to have the Form S-4 become effective under the Securities Act as promptly as reasonably practicable after such filing and (ii) to keep the Form S-4 effective as long as necessary to consummate the Merger and make Transactions. The Company will cause the proxy statement contained in the Form S-4 to be disseminated to the holders of Company Common Stock as promptly as reasonably practicable after the Form S-4 has become effective under the other transactions contemplated by this AgreementSecurities Act. Without limiting the generality of Notwithstanding the foregoing, but subject prior to Section 5.10(b)filing the Form S-4, or any amendment or supplement thereto, each party to this Agreement of the Company and Parent (i) shall make provide the other and/or its counsel an opportunity to review and comment on such document (including the proposed final version of such document), (ii) shall consider in good faith all filings comments reasonably proposed by the other or its counsel and (if anyiii) shall not file or mail such document or respond to the SEC prior to receiving the approval of the other, which approval shall not be unreasonably withheld, conditioned or delayed.
(b) The Company and give Parent will provide for inclusion or incorporation by reference into the Form S-4 all notices (if any) reasonably required information relating to the Company, Parent or Merger Sub or their respective affiliates, and the Form S-4 shall include all information reasonably requested by such other party to be made included therein. Parent shall promptly notify the Company and given by its counsel of any comments or other communications, whether written or oral, that Parent or its counsel may receive from time to time from the SEC or its staff with respect to the Form S-4, and shall provide the Company with copies of written correspondence between Parent and its representatives, on the one hand, and the SEC, on the other hand. Parent shall use its reasonable best efforts to respond as promptly as reasonably practicable to any such party comments from the SEC or its staff with respect to the Form S-4, and will use its reasonable efforts to incorporate any reasonable comments of the Company or its counsel prior to such response. The Company shall use its reasonable best efforts to cooperate with Parent in responding to any such comments from the SEC or its staff with respect to the Form S-4. Parent shall advise the Company, promptly after it receives notice thereof, of the time of effectiveness of the Form S-4, the issuance of any stop order relating thereto or the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, and the other transactions contemplated by this Agreement, (ii) Parent shall use all its reasonable best efforts to obtain each Consent have any such stop order or suspension lifted, reversed or otherwise terminated. Parent shall also take any other action (if anyother than qualifying to do business in any jurisdiction in which Parent is not now so qualified) required to be obtained (pursuant to taken under the Securities Act, the Securities Exchange Act, any applicable Legal Requirement foreign or Contract, state securities or otherwise) by such party “blue sky” Laws and the rules and regulations thereunder in connection with the Merger issuance of Parent Common Stock in the Merger, and the Company shall furnish all information concerning the Company and the holders of its capital stock as may be reasonably requested in connection with any such actions.
(c) The information provided by Parent and the Company specifically for use in the Form S-4 shall not, with respect to the information provided by such person, on the date upon which the proxy statement and prospectus contained in the Form S-4 is distributed to the holders of Company Common Stock, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Company and Parent agrees to promptly (i) correct any information provided by it specifically for use in the Form S-4 if and to the extent that such information shall have become false or misleading in any material respect and (ii) supplement the information provided by it specifically for use in the Form S-4 to include any information that shall become necessary in order to make the statements in the Form S-4, in light of the circumstances under which they were made, not misleading. Parent further agrees to cause the Form S-4 as so corrected or supplemented promptly to be filed with the SEC and each of the Company and Parent agrees to cause the Form S-4 to be disseminated to the holders of Company Common Stock (and will use its reasonable efforts to incorporate any reasonable comments of the other transactions contemplated by this Agreementparty and/or its counsel prior to such filing and dissemination), in each case as and (iii) shall use all reasonable efforts to lift any restraint, injunction or other legal bar to the Merger. The Company shall promptly deliver to Parent a copy of each such filing made, each such notice given and each such Consent obtained extent required by the Company during the Pre-Closing Periodapplicable Laws.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) to hold separate or cause any of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporations.
Appears in 1 contract
Additional Agreements. 5.1 PREPARATION OF THE FORM S-4, PROXY STATEMENT; STOCKHOLDERS MEETING.
(a) Subject to Section 5.10(b)As promptly as practicable following the date of this Agreement, Parent Newco and Company shall prepare, and Newco shall file with the SEC, the Form S-4, in which the Proxy Statement will be included as a prospectus. Each of Newco and Company shall use all reasonable efforts to takehave the Form S-4 declared effective under the Securities Act, or cause and for the Proxy Statement to be takencleared under the Exchange Act, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreementas promptly as practicable after such filing. Without limiting any other provision hereinabove contained, the generality of Form S-4 and the foregoingProxy Statement will contain, but subject to Section 5.10(b)without limitation, each party to this Agreement such information and disclosure reasonably requested by either Newco or Company so that (i) the Form S-4 conforms in both form and substance to the requirements of the Securities Act, and (ii) the Proxy Statement conforms in both form and substance to the requirements of the Exchange Act. Company shall make all filings use reasonable best efforts to cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after the Form S-4 is declared effective.
(if anyb) and give all notices If at any time prior to the Effective Time there shall occur (if anyi) any event with respect to Company or any of its Subsidiaries, or with respect to other information supplied by Company for inclusion in the Form S-4 or the Proxy Statement or (ii) any event with respect to Newco, or with respect to information supplied by Newco for inclusion in the Form S-4 or the Proxy Statement, in either case, which event is required to be made described in an amendment of, or a supplement to, the Form S-4 or the Proxy Statement, such event shall be so described, and given such amendment or supplement shall be promptly filed with the SEC and, as required by such party law, disseminated to the stockholders of Company.
(c) Each of Company and Newco shall promptly notify the other of the receipt of any comments from the SEC or its staff or any other appropriate government official and of any requests by the SEC or its staff or any other appropriate government official for amendments or supplements to any of the filings with the SEC in connection with the Merger and the other transactions contemplated by hereby or for additional information and shall supply the other with copies of all correspondence between Company or any of its representatives, or Newco or any of its representatives, as the case may be, on the one hand, and the SEC or its staff or any other appropriate government official, on the other hand, with respect thereto. Company and Newco shall use their respective reasonable best efforts to respond to any comments of the SEC with respect to the Form S-4 and the Proxy Statement as promptly as practicable. Company and Newco shall cooperate with each other and provide to each other all information necessary in order to prepare the Form S-4 and the Proxy Statement, and shall provide promptly to the other party any information such party may obtain that could necessitate amending any such document.
(d) Company shall, as promptly as practicable after the Form S-4 is declared effective under the Securities Act, duly call, give notice of, convene and hold Company Stockholders Meeting in accordance with the DGCL for the purpose of obtaining Company Stockholder Approval and subject to Section 4.3, the Board of Directors of Company shall recommend to Company's stockholders the approval and adoption of this Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of and the other transactions contemplated hereby (the "COMPANY RECOMMENDATION"); provided, however, that Company's Board of Directors shall not be required to make such Company Recommendation to the extent that it is permitted to effect a Change in Company Recommendation pursuant to Section 4.3. Without limiting the generality of the foregoing, Company agrees that its obligations pursuant to the first sentence of this Section 5.1(d) shall not be affected by the commencement, public proposal, public disclosure or communication to Company of any Company Takeover Proposal. Notwithstanding any Change in Company Recommendation, unless otherwise directed in writing by Newco, this Agreement and the Merger shall be submitted to the stockholders of Company at Company Stockholders Meeting for the purpose of approving the Agreement and the Merger and nothing contained herein shall be deemed to relieve Company of such obligation, provided, however, that if the Board of Directors of Company shall have effected a Change in Company Recommendation in accordance with this Agreement, and then in submitting this Agreement to Company's stockholders, the Board of Directors of Company may submit this Agreement to Company's stockholders without recommendation (iii) shall use all reasonable efforts although the resolutions adopting this Agreement as of the date hereof may not be rescinded or amended), in which event the Board of Directors of Company may communicate the basis for its lack of a recommendation to lift any restraint, injunction Company's stockholders in the Proxy Statement or other legal bar an appropriate amendment or supplement thereto to the Mergerextent required by law. The Company If required by applicable law or stock exchange requirements, or if Parent elects in its discretion to submit this Agreement to its stockholders or Newco stockholders for approval, Parent and/or Newco, as applicable, shall submit this Agreement to their respective shareholders for approval at a special meeting to be held as promptly deliver as practicable following effectiveness of the Form S-4 and on the timing described in Section 5.1(e), and by approving execution of this Agreement the Board of Directors of Parent agrees that it shall, at the time any proxy statement soliciting approval of this Agreement and the transactions contemplated hereby is mailed to Parent a copy the stockholders of each Parent, recommend that Parent's stockholders vote for such approval, and it shall cause the Board of Directors of Newco to recommend that Newco's stockholder vote for such approval; provided that Parent's determination as to whether it shall submit this Agreement to its and/or Newco's stockholders for approval shall be made prior to the initial filing made, each such notice given and each such Consent obtained by of the Company during the Pre-Closing PeriodForm S-4.
(be) Notwithstanding anything Company, Newco and Parent shall coordinate and cooperate with respect to the contrary contained in this Agreementtiming of their respective stockholders meeting, Parent and shall not have any obligation under this Agreement: (i) to dispose or cause any of its subsidiaries to dispose of any assets, or to commit to cause any of the Acquired Corporations to dispose of any assets; (ii) to discontinue or cause any of its subsidiaries to discontinue offering any product, or to commit to cause any of the Acquired Corporations to discontinue offering any product; (iii) to license or otherwise make available, or cause any of its subsidiaries to license or otherwise make available, to any Person, any technology, software or other Proprietary Asset, or to commit to cause any of the Acquired Corporations to license or otherwise make available to any Person any technology, software or other Proprietary Asset; (iv) use reasonable best efforts to hold separate or cause any each of its subsidiaries to hold separate any assets or operations (either before or after the Closing Date), or to commit to cause any such meetings within five business days of the Acquired Corporations to hold separate any assets or operations; or (v) to make or cause any of its Subsidiaries to make any commitment (to any Governmental Body or otherwise) regarding its future operations or the future operations of any of the Acquired Corporationseach other.
Appears in 1 contract
Sources: Merger Agreement (BSB Bancorp Inc)