Proxy Statement; Special Meeting. (a) Buyer shall, in accordance with applicable Law and Buyer’s Organizational Documents: (i) prepare and file with the SEC no later than five (5) Business Days following the date of this Agreement, a preliminary proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer shall provide Seller Parent with an opportunity to review and comment on such document or response. (b) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will not, as of the filing date of the Proxy Statement (or any amendment or supplement thereto) or as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent for inclusion in the Proxy Statement). (c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Medicines Co /De), Purchase and Sale Agreement (Melinta Therapeutics, Inc. /New/)
Proxy Statement; Special Meeting. (a) Buyer shall, in accordance with applicable Law and Buyer’s Organizational Documents: (i) prepare and file with the SEC no later than five (5) Business Days As soon as practicable following the date of this Agreement, Seller shall prepare (with Buyer’s reasonable cooperation) and, no later than ten (10) days or such other later date as mutually agreed upon by Seller and Buyer in writing, file with the SEC a preliminary proxy statement in preliminary form relating to the solicitation Stockholder Meeting (the “Proxy Statement”). Seller will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of proxies from the Exchange Act and shall use its reasonable best efforts to cause the Proxy Statement to be filed with the SEC and then mailed to stockholders of Buyer for Seller as soon as reasonably practicable (and in any event within five (5) Business Days) after the Buyer Stockholder Approval and earlier to occur of: (Ai) respond promptly to any if Seller does not receive comments made by from the SEC with respect to the preliminary proxy statement Proxy Statement and cause a definitive proxy statement (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer does not reasonably believe that it will review the preliminary proxy statementreceive comments, the eleventh (11th) calendar day immediately following the SEC staff’s clearance date of filing of the preliminary proxy statement (Proxy Statement with the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval SEC and (ii) cause a special meeting of its if Seller does receive comments from the SEC with respect to the preliminary Proxy Statement, clearance by the SEC with respect to such comments; provided, however, in no event will Seller be required to file the Proxy Statement with the SEC prior to the record date for Company stockholders entitled to vote at the Stockholder Meeting as set forth in the preliminary Proxy Statement (the “Special Meeting”) such record date to be duly calleddetermined by Seller, noticed and held no later than the twelfth subject to Buyer’s approval (12th) day following the Mailing Date for the purpose of obtaining the such approval not to be unreasonably withheld)). Buyer Stockholder Approval. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made cooperate with the SEC. Seller Parent shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement, including providing to Seller any and all information regarding Buyer and its Affiliates as may be required to be disclosed therein as promptly as possible after the date hereof. Prior Seller shall notify Buyer 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 filing the Proxy Statement or for additional information and shall provide Buyer with copies of all substantive correspondence between Seller or any of its representatives, on the one hand, and the SEC or its staff, on the other hand and also provide Buyer with copies of any written comments, and advise Buyer of any oral comments, in each case, with respect to the Proxy Statement received from the SEC.
(b) Each of Seller and ▇▇▇▇▇ agrees that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement or any amendment or supplement thereto will, at the date of mailing to Seller stockholders and at the time of the Stockholder Meeting to be held in connection with the Transactions, 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. If, at any time prior to receipt of Stockholder Approval, any event occurs with respect to Seller or Buyer or any change occurs with respect to other information to be included in the Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Proxy Statement so that the Proxy Statement shall not contain an untrue statement 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, the Party that discovers such information shall promptly notify the other Party of such event and Seller shall promptly file, with Buyer’s cooperation, any necessary amendment or supplement to the Proxy Statement. Seller will also advise Buyer, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement.
(c) 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, Seller shall (i) provide Buyer shall provide Seller Parent with an opportunity to review and comment on such document or responseresponse (which comments shall be considered by Seller in good faith) and (ii) not file or mail such document, or respond to the SEC, prior to receiving the approval of Buyer, which approval shall not be unreasonably withheld, conditioned or delayed, except that no such Buyer approval shall be required in connection with an Adverse Recommendation Change, the exercise by Seller of its rights and obligations under Section 6.02 or if required by the SEC or appliable Law.
(bd) Buyer shall comply with all applicable provisions Seller shall, as soon as practicable following the date of this Agreement and rules under subject to the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, SEC and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will not, as of the filing date SEC staff completing their review (or no review) of the Proxy Statement (or any amendment or supplement theretoas contemplated by Section 6.11(a) or and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting of the date holders of Common Stock (the Special “Stockholder Meeting”) for the purpose of seeking the Stockholder Approval. Seller may not postpone or adjourn the Stockholder Meeting without the prior written consent of ▇▇▇▇▇. Notwithstanding the foregoing, Seller may postpone or adjourn the Stockholder Meeting (on one or more occasions) (i) with the consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed, (ii) for the absence of a quorum, (iii) to allow reasonable additional time for any supplemental or amended disclosure that Seller has determined in good faith in consultation with its outside counsel is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by Seller’s stockholders prior to the Stockholder Meeting, contain any untrue statement (iv) to allow additional solicitation of a material fact or omit to state a material fact necessary votes in order to make obtain the statements madeStockholder Approval or (v) if required by applicable Law; provided, that Seller may not postpone or adjourn the Stockholder Meeting more than a total of two (2) times pursuant to the preceding clause (iv). The notice of such Stockholder Meeting shall state that a resolution to adopt this Agreement will be considered at the Stockholder Meeting. Unless the Seller Board has effected an Adverse Recommendation Change in accordance with Section 6.02(d), (x) the light Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent for inclusion Determination in the Proxy Statement).
(c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and (y) Seller shall use reasonable best efforts to solicit the Stockholder Approval. Seller shall not include in the Proxy Statement any proposal to vote upon or consider any Acquisition Proposal (other than the recommendation Transactions). Without limiting the generality of the Board of Directors of Buyer that stockholders vote foregoing and except as provided in favor of the issuance of Buyer Common StockSection 6.02, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to unless this Agreement and the Financing has been terminated in accordance with NASDAQ Rule 5635its terms, Seller shall submit the Transactions and this Agreement for the approval of its stockholders at the Stockholder Meeting whether or not an Adverse Recommendation Change shall have occurred or an Acquisition Proposal shall have been publicly announced or otherwise made known to Seller, the Seller Board, Seller’s Representatives or stockholders.
Appears in 2 contracts
Sources: Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.), Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.)
Proxy Statement; Special Meeting. (a) Buyer Seller shall, in accordance with applicable Law the DGCL and BuyerSeller’s Organizational Documents: (i) prepare certificate of incorporation and file with the SEC no later than five (5) Business Days following the bylaws, establish a record date of this Agreementfor, duly call, give notice of, convene and hold a preliminary proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Stockholder Meeting”) to be duly calledas promptly as practicable after the date hereof, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval. The Seller shall use commercially reasonable efforts to solicit from its stockholders proxies for the purposes of obtaining the Stockholder Approval and to secure such Stockholder Approval in accordance with the DGCL and Seller’s certificate of incorporation and bylaws.
(b) As promptly as practicable after the date hereof (and in any event within 15 Business Days), Seller shall prepare and file with the SEC a preliminary Proxy Statement with the SEC to be used in connection with the solicitation of proxies at the Stockholder Meeting. Seller and Buyer shall use commercially reasonable efforts to respond to any comments of the SEC and its staff, and Seller shall file a definitive Proxy Statement as soon as reasonably practicable following resolution of any SEC comments and mail to its stockholders the Proxy Statement and all other proxy materials for such Stockholder Meeting. If necessary in order to comply with applicable securities laws, after the Proxy Statement shall include have been so mailed, promptly circulate amended, supplemental or supplemented proxy material, and, if required in connection therewith, resolicit proxies. Subject to Section 6.2, to the recommendation extent permitted by applicable law, Seller Board shall recommend that the stockholders of the Board of Directors of Buyer that stockholders Seller vote in favor of approval of the issuance sale of Buyer Common Stock the Acquired Assets pursuant to this Agreement and the Financing. The transaction contemplated hereby (“Seller Board Recommendation”) and shall include such recommendation in the Proxy Statement Statement; provided, however, that the Seller Board may fail to make, or withdraw, modify or change such recommendation, and shall not incorporate by reference be required to include such recommendation in the Proxy Statement, if it shall have made a Change in Recommendation. Without limiting the generality of the foregoing, unless this Agreement is otherwise terminated in accordance with its terms, the approval of the sale of the Acquired Assets pursuant to this Agreement and the Transactions contemplated hereby shall be submitted to Seller’s stockholders at the Stockholder Meeting whether or not any information from any other filing made with the SEC. Seller Parent Acquisition Proposal shall have been publicly proposed or announced or otherwise submitted to Seller.
(c) Buyer shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries Buyer, as Buyer may be reasonably request requested in connection with the preparation and filing with the SEC of the Proxy StatementStatement so as to comply with applicable law. Prior Buyer and its counsel shall be given a reasonable opportunity to filing review and comment on the preliminary and definitive Proxy Statement before such document (or mailing any amendment or supplement thereto) is filed with the SEC, and Seller shall consider in such document any comments reasonably and timely proposed by Buyer and its counsel. Seller shall (i) as promptly as practicable after receipt thereof, provide Buyer and its counsel with copies of any written comments, and advise Buyer and its counsel of any comments, with respect to the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of received from the SEC with respect theretoor its staff, (ii) provide Buyer shall provide Seller Parent with an and its counsel a reasonable opportunity to review and comment on Seller’s proposed response to such document or response.
(b) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereundercomments, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will not, as of the filing date of the Proxy Statement (or any amendment or supplement theretoiii) or as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent consider for inclusion in the Proxy Statement)Seller’s written response to such comments any input reasonably and timely proposed by Buyer and its counsel.
(c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Alliqua BioMedical, Inc.)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Oakmont from Parent and the Company of all financial and other information relating to Parent and the Company as Oakmont may reasonably request, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Oakmont shall prepare and file with the SEC no later than five (5) Business Days following SEC, and with all other applicable regulatory bodies, proxy materials for the date purpose of this Agreement, obtaining the Oakmont Stockholder Approval. Such proxy materials shall be in the form of a preliminary proxy statement relating to be used for the purpose of soliciting such proxies from stockholders of Oakmont and also for the purpose of issuing New Oakmont Stock to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Company Stockholders (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval). The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement Parent and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Company shall furnish to Buyer Oakmont all information concerning Seller Parent and the Company as Oakmont may reasonably request. Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer counsel shall provide Seller Parent with be given an opportunity to review and comment on such document the Proxy Statement prior to its filing with the SEC. Oakmont and Parent will use their best efforts to cause the Proxy Statement to be filed with the SEC on or response.
before February 26, 2007. 5.1.(b) Without limitation of the generality of the foregoing, Parent shall provide Oakmont with audited financial statements of the Company consisting of balance sheets of the Company as of December 31, 2004, 2005, and 2006, and the related statements of income and cash flows for the years then ended (bincluding the notes contained therein or annexed thereto) Buyer (the “Audited Company Financials”), reported on, and accompanied by, signed, unqualified opinions of independent auditors reasonably acceptable to Oakmont. The Audited Company Financials (including all notes and schedules contained therein or annexed thereto) shall comply (i) be true, complete and accurate, (ii) have been prepared in accordance with all applicable provisions GAAP applied on a consistent basis, (iii) have been prepared in accordance with the books and records of the Company, (iv) fairly present, in accordance with GAAP, the assets, liabilities and rules under financial position, the results of operations and cash flows of the Company as of the dates and for the years and periods indicated, (v) be in compliance as to form with the Exchange Act and all applicable provisions the published rules and regulations of the DGCL SEC as required to be included in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will notand the Transaction Form 8-K, as of the filing date of the Proxy Statement and (or any amendment or supplement theretovi) or as of the date of the Special Meeting, contain any untrue statement of a material fact or omit otherwise be reasonably acceptable to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent Oakmont for inclusion in the Proxy Statement).
5.1. (c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) callOakmont, notice or hold the Special Meeting, (B) prepare and file with the assistance of Parent, shall promptly respond to any SEC comments on the preliminary or definitive Proxy Statement and include in shall otherwise use reasonable best efforts to cause the Proxy Statement to be declared effective as promptly as practicable. Oakmont shall also take any and all such actions to satisfy the recommendation requirements of the Board Securities Act and the Exchange Act. Prior to the Closing Date, Oakmont shall use its reasonable best efforts to cause the shares of Directors New Oakmont Stock to be issued to Parent hereunder to be registered or qualified under “blue sky” Laws of Buyer that stockholders vote in favor each of the issuance states and territories of Buyer Common Stockthe United States in which the parties deem necessary, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly take any other such actions which may be necessary to withdraw, modify or qualify, enable New Oakmont Stock to be issued in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635each such jurisdiction.
Appears in 2 contracts
Sources: Merger Agreement (Brooke Corp), Merger Agreement (Oakmont Acquisition Corp.)
Proxy Statement; Special Meeting. (a) Except as specifically permitted by Section 7.12(c), the Buyer shall, in accordance with applicable Law and the Buyer’s Organizational Documentsamended and restated certificate of incorporation and amended and restated by-laws: (i) prepare and file with the SEC SEC, as promptly as practicable after the date of this Agreement (and in no event later than the later of (x) ten (10) calendar days after the Company delivers to the Buyer the Unaudited Financial Statements and (y) twenty-five (525) Business Days following calendar days after the date of this Agreement), a preliminary proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and promptly cause a definitive proxy statement (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than (provided that the later of (x) Buyer shall not be required to mail the expiration of Proxy Statement until the ten (10)-day period required by SEC Rule 14a-6 and (y) if 2011 Audited Financial Statements have been included in the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”Proxy Statement) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held as promptly as practicable after the date of this Agreement (and in no event later than forty five (45) calendar days after mailing of the twelfth Proxy Statement, subject to adjournments for up to thirty (12th30) day following additional days solely to the Mailing Date extent necessary to solicit additional proxies if the Buyer Stockholder Approval is not obtained as of the initial Special Meeting date) for the purpose of obtaining the Buyer Stockholder Approval. The Except as specifically permitted by Section 7.12(c), the Proxy Statement shall include the recommendation of the Board of Directors of the Buyer that stockholders vote in favor of the issuance of the Buyer Common Stock pursuant to this Agreement and the FinancingAgreement. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Company shall furnish to the Buyer all information concerning Seller Parent the Company and its the Company Subsidiaries as the Buyer may reasonably request in connection with the preparation of the Proxy Statement, including, without limitation, selected financial data and management’s discussion and analysis of financial condition and results of operations as required pursuant to the rules and regulations of the SEC. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Buyer shall provide Seller Parent the Sellers’ Representative with an opportunity to review and comment on such document or response.
(b) The Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, the Buyer shall ensure that the Proxy Statement will not, as of the filing date of the Proxy Statement (or any amendment or supplement thereto) or as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that the Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Sellers or the Company furnished by a Seller Parent or the Company for inclusion in the Proxy Statement). Each Seller and the Company covenants and agrees, severally and not jointly, that the information relating to such Seller or the Company, as applicable, supplied by such Seller or the Company for inclusion in the Proxy Statement will not, as of the filing date of the Proxy Statement (or any amendment or supplement thereto) or as of the date of the Special Meeting, contain any statement which, at such time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein, in the light of the circumstances under which they were made, not false or misleading.
(c) Neither the Buyer nor the Board of Directors of the Buyer shall (i) fail to as promptly as practicable (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of the Board of Directors of the Buyer that stockholders vote in favor of the issuance of the Buyer Common Stock, all as required and Stock pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parentthe Company or the Sellers, its recommendation that the Buyer’s stockholders approve the issuance of the Buyer Common Stock pursuant to this Agreement in accordance with NASDAQ Rule 5635 (any of such actions in clauses (i) and (ii), a “Buyer Triggering Action”), unless (i) the Financing Board of Directors of the Buyer determines in good faith, after receiving advice of outside counsel, that the failure to effect such Buyer Triggering Action would be inconsistent with the exercise of its fiduciary duties to the stockholders of the Buyer under applicable Law and (ii) the Buyer provides to the Sellers written notice of the determination of its Board of Directors to effect such Buyer Triggering Action two (2) Business Days prior to taking such action. Unless this Agreement shall have been terminated in accordance with Article IX (including, for the avoidance of doubt, Section 9.1(f)), the Buyer shall submit the issuance of the Buyer Common Stock pursuant to this Agreement in accordance with NASDAQ Rule 5635 to its stockholders for approval without regard to whether the Board of Directors of the Buyer has withdrawn, modified or qualified, or has publicly proposed to withdraw, modify or qualify, in a manner adverse to the Sellers, its recommendation that the Buyer’s stockholders approve the issuance of the Buyer Common Stock pursuant to this Agreement in accordance with NASDAQ Rule 5635.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Avista Capital Partners GP, LLC), Stock Purchase Agreement (Angiodynamics Inc)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by the Parent from the Company of all financial and other information relating to the Company as the Parent may reasonably request for its preparation, in accordance with applicable Law and Buyer’s Organizational Documents: (i) the Parent shall prepare and file with the SEC no later than five (5) Business Days following under the date Exchange Act, and with all other applicable regulatory bodies, proxy materials for the purpose of soliciting proxies from holders of Parent Common Stock to vote in favor of the adoption of this Agreement, Agreement and the approval of the transactions contemplated hereby (“Parent Stockholder Approval”) at a preliminary meeting of holders of Parent Common Stock to be called and held for such purpose (the “Special Meeting”). Such proxy materials shall be in the form of a proxy statement relating to be used for the solicitation purpose of soliciting proxies from the stockholders holders of Buyer Parent Common Stock for the Buyer Stockholder Approval and (A) respond promptly matters to any comments made by be acted upon at the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Special Meeting (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval). The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Company shall furnish to Buyer the Parent all information concerning Seller the Company as the Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer The Company and its counsel shall provide Seller Parent with be given an opportunity to review and comment on the preliminary Proxy Statement prior to its filing with the SEC. The Parent, with the assistance of the Company, shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use reasonable best efforts to cause the Proxy Statement to be approved by the SEC as promptly as practicable. The Parent shall also take any and all actions required to satisfy the requirements of the Securities Act and the Exchange Act. Prior to the Closing Date, the Parent shall use its reasonable best efforts to cause the shares of Parent Common Stock to be issued pursuant to this Agreement to be registered or qualified under all applicable blue sky laws of each of the states and territories of the United States in which it is believed, based on information furnished by the Company, the Members reside and in which such document registration or responsequalification is required and to take any other such actions that may be reasonably necessary to enable the Parent Common Stock to be issued pursuant to this Agreement in each such jurisdiction.
(b) Buyer As soon as practicable (but in no event later than ten (10) Business Days) following the approval of the Proxy Statement by the SEC, the Parent shall distribute the Proxy Statement to the holders of Parent Common Stock and, pursuant thereto, shall call, give notice of, convene and hold the Special Meeting in accordance with the DGCL not more than 25 days after mailing the Proxy Statement to the holders of Parent Common Stock and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby and the other matters presented to the stockholders of Parent for approval or adoption at the Special Meeting.
(c) The Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer the Parent shall use its reasonable best efforts to ensure that the Proxy Statement will does not, as of the filing date on which it is first distributed to stockholders of the Proxy Statement (or any amendment or supplement thereto) or Parent, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer misleading. The Parent shall not be responsible for the accuracy or completeness of promptly correct any information relating to Seller Parent furnished provided by Seller Parent it for inclusion use in the Proxy Statement)Statement if and to the extent that such information becomes false or misleading and the Parent shall take all steps necessary to cause the Proxy Statement as so corrected to be filed with the SEC and disseminated to the stockholders of the Parent (as and to the extent required by the Securities Act or the Exchange Act) and to the Seller. The Parent will provide to the Seller and its counsel any comments that the Parent or its counsel may receive from the SEC or its staff, whether written or oral, with respect to the Proxy Statement promptly after receipt of any such comments. The Parent will use its reasonable best efforts to respond promptly to any comments received from the SEC or its staff, in each case (if necessary) after consultation with the Seller and compliance with the terms hereof with respect to the preparation of the Proxy Statement and any amendments or supplements thereto.
(cd) Neither Buyer nor the Board The Parent, acting through its board of Directors of Buyer directors, shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders Parent Common Stock vote in favor of the issuance adoption of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635approval of the transactions contemplated hereby and shall not withdraw or modify its recommendation. The Parent shall use commercially reasonable efforts to obtain the Parent Stockholder Approval.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Kline Hawkes Pacific Advisors, LLC), Stock Purchase Agreement (Vector Intersect Security Acquisition Corp.)
Proxy Statement; Special Meeting. (a) Buyer shall, in accordance with applicable Law and Buyer’s Organizational Documents: (i) prepare and file with the SEC no later than five (5) Business Days following As promptly as practicable after the date of this Agreement, the Company shall prepare and file with the Securities and Exchange Commission (the “SEC”) a preliminary proxy statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the solicitation Merger and this Agreement in preliminary form as required by the Securities Exchange Act of proxies from 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), and shall use all reasonable efforts to have the Proxy Statement cleared by the SEC; provided, that Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review and comment on the Proxy Statement before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel. Subject to Section 5.2(d), the Company shall include in the Proxy Statement the recommendation of the Company Board of Directors that stockholders of Buyer for the Buyer Stockholder Approval Company vote in favor of the adoption of this Agreement and (A) approval of the Merger in accordance with the DGCL. The Company shall use its reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with Merger Sub, respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) . The Company shall provide Parent, Merger Sub and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review and comment on any such written responses and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel. Prior to and during the Special Meeting, the Company, on the one hand, and Parent and Merger Sub, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. The Company further agrees to cause the Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.6(b), mailed to Buyer’s stockholders no later than holders of Shares, in each case as and to the later of (x) the expiration of the ten (10)-day period extent required by SEC Rule 14a-6 and (y) if the Exchange Act or the SEC advises Buyer that it will review (or its staff).
(b) The Company, acting through the preliminary proxy statementCompany Board of Directors, shall, in accordance with and subject to the day following requirements of applicable Law:
(i) as promptly as reasonably practicable after the Proxy Statement is cleared by the SEC stafffor mailing to the Company’s clearance stockholders, (A) duly set a record date for, call and give notice of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining considering and taking action upon this Agreement (with the Buyer Stockholder Approval. The record date and meeting date set in consultation with Parent), and (B) convene and hold the Special Meeting;
(ii) cause the definitive Proxy Statement shall to be mailed to its stockholders;
(iii) except in the case of a Company Change in Recommendation specifically permitted by Section 5.2(d), (A) recommend to its stockholders that they adopt this Agreement and approve the Merger, and (B) include such recommendation in the recommendation of the Board of Directors of Buyer that Proxy Statement; and
(iv) subject to Section 5.2(d), use its reasonable best efforts to (A) solicit from its stockholders vote proxies in favor of the issuance adoption of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation approval of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer shall provide Seller Parent with an opportunity to review Merger and comment on such document or response.
(b) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will not, as of the filing date of the Proxy Statement (or any amendment or supplement thereto) or as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent for inclusion in the Proxy Statement).
(c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation secure any approval of stockholders of the Board of Directors of Buyer Company that stockholders vote in favor of is required by the issuance of Buyer Common Stock, all as required DGCL and pursuant any other applicable Law to this Agreement, (C) solicit proxies from its stockholders for effect the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635Merger.
Appears in 1 contract
Proxy Statement; Special Meeting. (a) Buyer shall, in accordance with applicable Law and Buyer’s Organizational Documents: (i) prepare and file with the SEC no later than five (5) Business Days As soon as practicable following the date of this Agreement, Seller shall prepare (with Buyer’s reasonable cooperation) and, no later than ten (10) days or such other later date as mutually agreed upon by Seller and Buyer in writing, file with the SEC a preliminary proxy statement in preliminary form relating to the solicitation Stockholder Meeting (the “Proxy Statement”). Seller will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of proxies from the Exchange Act and shall use its reasonable best efforts to cause the Proxy Statement to be filed with the SEC and then mailed to stockholders of Buyer for Seller as soon as reasonably practicable (and in any event within five (5) Business Days) after the Buyer Stockholder Approval and earlier to occur of: (Ai) respond promptly to any if Seller does not receive comments made by from the SEC with respect to the preliminary proxy statement Proxy Statement and cause a definitive proxy statement (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer does not reasonably believe that it will review the preliminary proxy statementreceive comments, the eleventh (11th) calendar day immediately following the SEC staff’s clearance date of filing of the preliminary proxy statement (Proxy Statement with the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval SEC and (ii) cause a special meeting of its if Seller does receive comments from the SEC with respect to the preliminary Proxy Statement, clearance by the SEC with respect to such comments; provided, however, in no event will Seller be required to file the Proxy Statement with the SEC prior to the record date for Company stockholders entitled to vote at the Stockholder Meeting as set forth in the preliminary Proxy Statement (the “Special Meeting”) such record date to be duly calleddetermined by Seller, noticed and held no later than the twelfth subject to Buyer’s approval (12th) day following the Mailing Date for the purpose of obtaining the such approval not to be unreasonably withheld)). Buyer Stockholder Approval. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made cooperate with the SEC. Seller Parent shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement, including providing to Seller any and all information regarding Buyer and its Affiliates as may be required to be disclosed therein as promptly as possible after the date hereof. Prior Seller shall notify Buyer 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 filing the Proxy Statement or for additional information and shall provide Buyer with copies of all substantive correspondence between Seller or any of its representatives, on the one hand, and the SEC or its staff, on the other hand and also provide Buyer with copies of any written comments, and advise Buyer of any oral comments, in each case, with respect to the Proxy Statement received from the SEC.
(b) Each of Seller and Bu▇▇▇ ▇grees that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement or any amendment or supplement thereto will, at the date of mailing to Seller stockholders and at the time of the Stockholder Meeting to be held in connection with the Transactions, 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. If, at any time prior to receipt of Stockholder Approval, any event occurs with respect to Seller or Buyer or any change occurs with respect to other information to be included in the Proxy Statement, which is required to be described in an amendment of, or a supplement to, the Proxy Statement so that the Proxy Statement shall not contain an untrue statement 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, the Party that discovers such information shall promptly notify the other Party of such event and Seller shall promptly file, with Buyer’s cooperation, any necessary amendment or supplement to the Proxy Statement. Seller will also advise Buyer, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement.
(c) 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, Seller shall (i) provide Buyer shall provide Seller Parent with an opportunity to review and comment on such document or responseresponse (which comments shall be considered by Seller in good faith) and (ii) not file or mail such document, or respond to the SEC, prior to receiving the approval of Buyer, which approval shall not be unreasonably withheld, conditioned or delayed, except that no such Buyer approval shall be required in connection with an Adverse Recommendation Change, the exercise by Seller of its rights and obligations under Section 6.02 or if required by the SEC or appliable Law.
(bd) Buyer shall comply with all applicable provisions Seller shall, as soon as practicable following the date of this Agreement and rules under subject to the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, SEC and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will not, as of the filing date SEC staff completing their review (or no review) of the Proxy Statement (or any amendment or supplement theretoas contemplated by Section 6.11(a) or and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting of the date holders of Common Stock (the Special “Stockholder Meeting”) for the purpose of seeking the Stockholder Approval. Seller may not postpone or adjourn the Stockholder Meeting without the prior written consent of Bu▇▇▇. Notwithstanding the foregoing, Seller may postpone or adjourn the Stockholder Meeting (on one or more occasions) (i) with the consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed, (ii) for the absence of a quorum, (iii) to allow reasonable additional time for any supplemental or amended disclosure that Seller has determined in good faith in consultation with its outside counsel is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by Seller’s stockholders prior to the Stockholder Meeting, contain any untrue statement (iv) to allow additional solicitation of a material fact or omit to state a material fact necessary votes in order to make obtain the statements madeStockholder Approval or (v) if required by applicable Law; provided, that Seller may not postpone or adjourn the Stockholder Meeting more than a total of two (2) times pursuant to the preceding clause (iv). The notice of such Stockholder Meeting shall state that a resolution to adopt this Agreement will be considered at the Stockholder Meeting. Unless the Seller Board has effected an Adverse Recommendation Change in accordance with Section 6.02(d), (x) the light Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent for inclusion Determination in the Proxy Statement).
(c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and (y) Seller shall use reasonable best efforts to solicit the Stockholder Approval. Seller shall not include in the Proxy Statement any proposal to vote upon or consider any Acquisition Proposal (other than the recommendation Transactions). Without limiting the generality of the Board of Directors of Buyer that stockholders vote foregoing and except as provided in favor of the issuance of Buyer Common StockSection 6.02, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to unless this Agreement and the Financing has been terminated in accordance with NASDAQ Rule 5635its terms, Seller shall submit the Transactions and this Agreement for the approval of its stockholders at the Stockholder Meeting whether or not an Adverse Recommendation Change shall have occurred or an Acquisition Proposal shall have been publicly announced or otherwise made known to Seller, the Seller Board, Seller’s Representatives or stockholders.
Appears in 1 contract
Sources: Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Parent from the Company of all financial and other information relating to the Company as Parent may reasonably request for its preparation, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Parent shall prepare and file with the SEC no later than five (5) Business Days following under the date of this AgreementExchange Act, a preliminary and with all other applicable regulatory bodies, proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date materials for the purpose of obtaining the Buyer Stockholder Approval. The Proxy Statement shall include the recommendation soliciting proxies from holders of the Board of Directors of Buyer that stockholders Parent Common Stock to vote in favor of,: (i) the adoption of the issuance of Buyer Common Stock pursuant to this Agreement and the Financingapproval of the Merger ("Parent Stockholder Approval"); (ii) the change of the name of Parent to a name selected by the Company (the "Name Change Amendment"); (iii) an increase in the number of authorized shares of Parent Common Stock to 100,000,000 (the "Capitalization Amendment"); (iv) an amendment to remove the preamble and Sections A through D, inclusive, of Article Sixth from Parent's Certificate of Incorporation from and after the Closing and to redesignate section E of Article Sixth as Article Sixth; and (v) the adoption of a Performance Equity Plan in the form attached hereto as Exhibit F (the "Parent Plan"), at a meeting of holders of Parent Common Stock to be called and held for such purpose (the "Special Meeting"). The Parent Plan shall provide that an aggregate of 2,400,000 shares of Parent Common Stock shall be reserved for issuance pursuant to the Parent Plan. Such proxy materials shall be in the form of a proxy statement to be used for the purpose of soliciting such proxies from holders of Parent Common Stock (the "Proxy Statement shall not incorporate by reference any information from any other filing made with the SECStatement"). Seller Parent The Company shall furnish to Buyer Parent all information concerning Seller the Company as Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer The Company and its counsel shall provide Seller Parent with be given an opportunity to review and comment on the Proxy Statement prior to its filing with the SEC. Parent, with the assistance of the Company, shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use reasonable best efforts to cause the Proxy Statement to be approved for issuance by the SEC as promptly as practicable. Parent shall also take any and all such document actions to satisfy the requirements of the Securities Act and the Exchange Act. Prior to the Closing Date, Parent shall use its reasonable best efforts to cause the shares of Parent Common Stock to be issued pursuant to the Merger to be registered or responsequalified under all applicable Blue Sky Laws of each of the states and territories of the United States in which it is believed, based on information furnished by the Company, holders of the Company Common Stock reside and to take any other such actions that may be necessary to enable the Parent Common Stock to be issued pursuant to the Merger in each such jurisdiction.
(b) Buyer As soon as practicable following its approval by the Commission, Parent shall distribute the Proxy Statement to the holders of Parent Common Stock and, pursuant thereto, shall call the Special Meeting in accordance with the DGCL and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the adoption of this Agreement and the approval of the Merger and the other matters presented to the stockholders of Parent for approval or adoption at the Special Meeting, including, without limitation, the matters described Section 5.1(a).
(c) Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer Parent shall ensure that the Proxy Statement will does not, as of the filing date on which it is distributed to the holders of the Proxy Statement (or any amendment or supplement thereto) or Parent Common Stock, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer Parent shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company for inclusion in the Proxy Statement). The Company represents and warrants that the information relating to the Company supplied by the Company for inclusion in the Proxy Statement will not as of date of its distribution to the holders of Parent Common Stock (or any amendment or supplement thereto) or at the time of the Special Meeting contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(cd) Neither Buyer nor the Board Parent, acting through its board of Directors of Buyer directors, shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders Parent Common Stock vote in favor of the issuance adoption of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635approval of the Merger, and shall otherwise use reasonable best efforts to obtain the Parent Stockholder Approval.
Appears in 1 contract
Sources: Merger Agreement (Tremisis Energy Acquisition Corp)
Proxy Statement; Special Meeting. (a) Buyer shallPurchaser shall promptly after the execution hereof commence to prepare and, in accordance with applicable Law as soon as is reasonably practicable after receipt by Purchaser from Seller of all financial and Buyer’s Organizational Documents: (i) prepare other information relating to Seller as Purchaser may reasonably request for inclusion therein, Purchaser shall complete and file with the SEC no later than five (5) Business Days following under the date of this AgreementExchange Act, a preliminary and with all other applicable regulatory bodies, proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date materials for the purpose of obtaining the Buyer Stockholder Approval. The Proxy Statement shall include the recommendation soliciting proxies from holders of the Board of Directors of Buyer that stockholders Purchaser Common Stock to vote in favor of (i) the issuance approval of Buyer Common Stock pursuant to this Agreement and the FinancingAcquisition ("Purchaser Stockholder Approval"), (ii) the change of the name of Purchaser to a name selected by Purchaser (the "Name Change Amendment"), (iii) an amendment to remove the preamble and sections A through D, inclusive of Article Sixth from Purchaser's Certificate of Incorporation from and after the Closing and to redesignate section E of Article Sixth as Article Sixth, and (iv) the adoption of an incentive equity plan (the "Purchaser Plan") at a meeting of holders of Purchaser Common Stock to be called and held for such purpose (the "Special Meeting"). The Purchaser Plan shall provide that an aggregate of 1,650,000 shares of Purchaser Common Stock shall be reserved for issuance pursuant to the Purchaser Plan. Such proxy materials shall be in the form of a proxy statement to be used for the purpose of soliciting such proxies from holders of Purchaser Common Stock for the matters to be acted upon at the Special Meeting (the "Proxy Statement shall not incorporate by reference any information from any other filing made with the SECStatement"). Seller Parent shall furnish to Buyer Purchaser all information in its possession or control concerning Seller Parent and its Subsidiaries as Buyer Purchaser may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer Seller and its counsel shall provide Seller Parent with be given an opportunity to review and comment on such document or responsethe Proxy Statement prior to its filing with the SEC. Purchaser, with the assistance of Seller, shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use reasonable best efforts to cause the Proxy Statement to be approved for distribution by the SEC as promptly as practicable.
(b) Buyer As soon as practicable following the approval for distribution of the Proxy Statement by the SEC, Purchaser shall distribute the Proxy Statement to the holders of Purchaser Common Stock and, pursuant thereto, shall call the Special Meeting in accordance with the Delaware General Corporation Law ("DGCL") and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the adoption of this Agreement and the approval of the Acquisition and the other matters presented for approval or adoption at the Special Meeting.
(c) Purchaser shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer Purchaser shall ensure that the Proxy Statement will does not, as of the filing date on which it is distributed to the holders of the Proxy Statement (or any amendment or supplement thereto) or Purchaser Common Stock, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer Purchaser shall not be responsible for the accuracy or completeness of any information relating to Seller Parent and furnished in writing by Seller Parent for inclusion in the Proxy Statement). Seller represents and warrants that the information relating to Seller supplied by Seller for inclusion in the Proxy Statement will not as of the date on which the Proxy Statement (or any amendment or supplement thereto) is approved for distribution by the SEC or at the time of the Special Meeting contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(cd) Neither Buyer nor the Board Purchaser, acting through its board of Directors of Buyer directors, shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders Purchaser Common Stock vote in favor of the issuance approval of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing Acquisition, and shall otherwise use reasonable best efforts to obtain the Purchaser Stockholder Approval.
(e) Seller shall cooperate with Purchaser and provide all information available to it reasonably requested by Purchaser in accordance connection with NASDAQ Rule 5635any application or other filing made to maintain or secure listing of Purchaser's securities on the AMEX or The Nasdaq Stock Market, Inc. ("Nasdaq") or the Over-the-Counter Bulletin Board ("OTC BB") following the Acquisition.
Appears in 1 contract
Sources: Asset Purchase Agreement (Courtside Acquisition Corp)
Proxy Statement; Special Meeting. (a) As promptly as practicable after the date hereof, and in any event on or prior to February 14, 2008, the Buyer shall, in accordance with applicable Law and Buyer’s Organizational Documents: (i) shall prepare and file with the SEC no later than five (5) Business Days following under the date of this AgreementExchange Act, and with all other applicable regulatory bodies, a preliminary proxy statement relating pursuant to the solicitation Section 14(a) of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Exchange Act (the “Preliminary Proxy Statement”), which shall include proxy materials for the purpose of soliciting proxies from holders of the Buyer’s Stock to vote in favor of the adoption of this Agreement and the approval of the transactions set forth therein (“Buyer Stockholder Approval”) at a meeting of the holders of the Buyer’s Stock to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 called and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders held for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders such purpose (the “Special Meeting”) as provided below. Such proxy materials shall be in the form of a proxy statement to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date used for the purpose of obtaining soliciting such proxies from holders of the Buyer Stockholder ApprovalBuyer’s Stock. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Company shall furnish to the Buyer all information concerning Seller Parent and its Subsidiaries the Company as the Buyer may reasonably request in connection with the preparation of the Preliminary Proxy Statement. Prior The Buyer shall promptly respond to any SEC comments on the Preliminary Proxy Statement, with the assistance of the Company, and shall otherwise use commercially reasonable efforts to resolve any such SEC comments relating to the Preliminary Proxy Statement. The Buyer shall also take any and all such actions to satisfy the requirements of the Securities Act and the Exchange Act. Notwithstanding the foregoing, prior to filing the Preliminary Proxy Statement or the Definitive Proxy Statement or mailing the Definitive Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Buyer shall provide Seller Parent the Sellers’ Representative with an opportunity to review and comment on such document or response.
(b) As promptly as practicable (and in any event within five (5) Business Days) following the resolution of any SEC comments on the Preliminary Proxy Statement, the Buyer shall file and distribute a definitive proxy statement pursuant to Section 14(a) of the Exchange Act (the “Definitive Proxy Statement”) to the holders of the Buyer’s Stock and, pursuant thereto, shall, as promptly as permitted under applicable Law and in its Charter and by-laws, call the Special Meeting and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the adoption of this Agreement and the approval of the transactions set forth therein to the stockholders of the Buyer for approval or adoption at the Special Meeting.
(c) The Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Preliminary Proxy Statement and Definitive Proxy Statement, as applicable, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer the Company shall ensure that the Definitive Proxy Statement will does not, as of the filing date on which it is distributed to the holders of the Proxy Statement (or any amendment or supplement thereto) or Buyer’s Stock, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that the Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company for inclusion in the Preliminary Proxy Statement or Definitive Proxy Statement).
. The Company covenants and agrees that the information relating to the Company supplied by the Company for inclusion in the Preliminary Proxy Statement or Definitive Proxy Statement will not, as of the filing date of the Preliminary Proxy Statement or Definitive Proxy Statement (c) Neither Buyer nor or any amendment or supplement thereto), as the Board case may be, or, in the case of Directors the Definitive Proxy Statement, at the time of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(Bd) prepare and file with The Buyer, acting through its board of directors, shall include in the SEC the preliminary or definitive Preliminary Proxy Statement and include in the Definitive Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders the Buyer’s Stock vote in favor of the issuance adoption of Buyer Common Stockthis Agreement and approval of the transactions set forth therein, all as required and pursuant shall otherwise use commercially reasonable efforts to this Agreement, (C) solicit proxies from its stockholders for obtain the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635Approval.
Appears in 1 contract
Sources: Stock Purchase Agreement (MBF Healthcare Acquisition Corp.)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Parent from the Company of all financial and other information relating to the Company as is necessary for its preparation (including the Updated Audited Financial Statements), in accordance with applicable Law and Buyer’s Organizational Documents: (i) Parent shall prepare and file with the SEC no later than five (5) Business Days following under the date Exchange Act, and with all other applicable regulatory bodies, the Proxy Statement/Prospectus to be used for the purpose of this Agreement, a preliminary proxy statement relating to the solicitation of soliciting proxies from the stockholders holders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Parent Common Stock (the “Proxy StatementParent Stockholders”) to be mailed to Buyer’s stockholders no later than the later vote in favor of (xi) the expiration adoption of this Agreement and the approval of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement Merger (the “Mailing DateMerger Proposal”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and ), (ii) cause the election to the board of directors of Parent of the individuals identified on Schedule 5.2 of the Parent Schedule for the class of director set forth opposite the name of such individual (the “Director Proposal”); (iii) the approval of certain changes to Parent’s Charter Documents, to be effective from and after the Closing, including the change of the name of Parent to a special name to be mutually agreed by the parties hereto, an increase in the number of authorized shares of Parent Common Stock to 350,000,000 and other mutually agreed upon changes to Parent’s capitalization structure and amendments to Article Sixth so that the existence of Parent shall be perpetual and to remove all SPAC-related provisions that will no longer be applicable to Parent following the Closing and such other amendments proposed by the Company that are reasonably acceptable to Parent (the “Charter Amendments Proposals”), (iv) the adoption of the Parent Plan, (v) approval of the PIPE Investment and (vi) approval of any other proposals reasonably agreed by Parent and the Company to be necessary or appropriate in connection with the transactions contemplated hereby (together with the Merger Proposal, Director Proposal, Charter Amendments Proposals and Plan Proposal, the “Stockholder Matters”) at a meeting of its stockholders Parent Stockholders to be called and held for such purpose (the “Special Meeting”). Without the prior written consent of the Company, the Stockholder Matters shall be the only matters (other than procedural matters) which Parent shall propose to be duly called, noticed acted on by the Parent Stockholders at the Special Meeting. The Parent Plan shall provide that not less than 10% of the total number of shares of Parent Common Stock to be issued and held no later than outstanding after the twelfth Closing (12th) day or such other number of shares as Parent and the Company may otherwise agree following the Mailing Date date hereof) shall be reserved for issuance pursuant to the purpose of obtaining the Buyer Stockholder ApprovalParent Plan. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Company shall furnish to Buyer Parent all information concerning Seller Parent and its Subsidiaries the Company as Buyer may reasonably request is necessary in connection with the preparation of the Proxy Statement/Prospectus and shall otherwise assist and cooperate with Parent as reasonably requested by Parent. Prior Parent shall also take all actions required to filing satisfy the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments requirements of the SEC with respect thereto, Buyer shall provide Seller Parent with an opportunity to review Securities Act and comment on such document or responsethe Exchange Act.
(b) Buyer As soon as reasonably practicable following the approval of the Proxy Statement/Prospectus by the SEC (the “SEC Approval Date”) (and in any event, within seven Business Days after the SEC Approval Date), Parent shall (i) distribute the Proxy Statement/Prospectus to the Parent Stockholders, (ii) having, prior to the SEC Approval Date, established the record date therefor, duly call, give notice of, convene and hold the Special Meeting in accordance with the DGCL and, subject to the other provisions of this Agreement, on a date no later than forty-five (45) days following the SEC Approval Date, and (iii) subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the adoption of this Agreement and the approval of the Merger and the other matters presented to the Parent Stockholders for approval or adoption at the Special Meeting, including, without limitation, the Stockholder Matters. Notwithstanding the foregoing provisions of this Section 5.1(b), Parent shall be entitled to make one or more successive postponements or adjournments of the Special Meeting (i) to ensure that any supplement or amendment to the Proxy Statement/Prospectus that Parent has determined in good faith is required to satisfy the conditions of Section 5.1(c) below or any other applicable Legal Requirement or (ii) if on a date for which the Special Meeting is scheduled, Parent reasonably determines that the Merger cannot be consummated for any reason; provided, that (1) Parent continues to satisfy its obligations under Section 5.1(d) below and Parent shall reconvene such Special Meeting as promptly as practicable following such time as the matters described in clauses (i) and (ii) have been resolved and (2) in no event shall the Special Meeting be held later than three (3) Business Days prior to January 16, 2021 (unless the Parties have waived the requirement in Section 1.2 that the Closing Date shall be no later than the third (3rd) Business Day after the satisfaction or waiver of the conditions set forth in Article VI, in which case the Special Meeting shall be held no later than January 16, 2021).
(c) Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement/Prospectus, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure Parent represents and warrants that the Proxy Statement will Statement/Prospectus shall not, as of the filing date of the Proxy Statement (or any amendment or supplement thereto) or on which it is first distributed to Parent Stockholders, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer Parent shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company for inclusion in the Proxy Statement/Prospectus). The Company represents and warrants that all financial and other information relating to the Company provided to Parent in connection with the Proxy Statement/Prospectus shall not, as of the date it is first distributed to Parent Stockholders, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. No filing of, or amendment or supplement to the Proxy Statement/Prospectus will be made without the approval of Parent and the Company (such approval not to be unreasonably withheld, conditioned or delayed).
(cd) Neither Buyer nor the Board Parent, acting through its board of Directors of Buyer directors, shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement Statement/Prospectus the recommendation of its board of directors that the Board of Directors of Buyer that stockholders Parent Stockholders vote in favor of the issuance adoption of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing approval of the Merger and the other matters referred to in accordance with NASDAQ Rule 5635Section 5.1(a), and shall otherwise use reasonable best efforts to obtain approval of the matters referred to in Section 5.1(a).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Pivotal Investment Corp II)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Oakmont from Parent and the Company of all financial and other information relating to Parent and the Company as Oakmont may reasonably request, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Oakmont shall prepare and file with the SEC no later than five (5) Business Days following SEC, and with all other applicable regulatory bodies, proxy materials for the date purpose of this Agreement, obtaining the Oakmont Stockholder Approval. Such proxy materials shall be in the form of a preliminary proxy statement relating to be used for the purpose of soliciting such proxies from stockholders of Oakmont and also for the purpose of issuing Oakmont Stock to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Company Stockholders (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval). The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement Parent and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Company shall furnish to Buyer Oakmont all information concerning Seller Parent and the Company as Oakmont may reasonably request. Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer counsel shall provide Seller Parent with be given an opportunity to review and comment on such document or responsethe Proxy Statement prior to its filing with the SEC.
(b) Buyer Without limitation of the generality of the foregoing, Parent shall comply provide Oakmont with audited financial statements of the Company consisting of balance sheets of the Company as of December 31, 2004, 2005, and 2006, and the related statements of income and cash flows for the years then ended (including the notes contained therein or annexed thereto) (the “Audited Company Financials”), reported on, and accompanied by, signed, unqualified opinions of independent auditors reasonably acceptable to Oakmont. The Audited Company Financials (including all applicable provisions notes and schedules contained therein or annexed thereto) shall (i) be true, complete and accurate, (ii) have been prepared in accordance with GAAP applied on a consistent basis, (iii) have been prepared in accordance with the books and records of the Company, (iv) fairly present, in accordance with GAAP, the assets, liabilities and rules under financial position, the results of operations and cash flows of the Company as of the dates and for the years and periods indicated, (v) be in compliance as to form with the Exchange Act and all applicable provisions the published rules and regulations of the DGCL SEC as required to be included in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will notand the Transaction Form 8-K, as of the filing date of the Proxy Statement and (or any amendment or supplement theretovi) or as of the date of the Special Meeting, contain any untrue statement of a material fact or omit otherwise be reasonably acceptable to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent Oakmont for inclusion in the Proxy Statement).
5.1. (c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) callOakmont, notice or hold the Special Meeting, (B) prepare and file with the assistance of Parent, shall promptly respond to any SEC comments on the preliminary or definitive Proxy Statement and include in shall otherwise use reasonable best efforts to cause the Proxy Statement to be declared effective as promptly as practicable. Oakmont shall also take any and all such actions to satisfy the recommendation requirements of the Board Securities Act and the Exchange Act. Prior to the Closing Date, Oakmont shall use its reasonable best efforts to cause the shares of Directors Oakmont Stock to be issued to Parent hereunder to be registered or qualified under “blue sky” Laws of Buyer that stockholders vote in favor each of the issuance states and territories of Buyer Common Stockthe United States in which the parties deem necessary, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly take any other such actions which may be necessary to withdraw, modify or qualify, enable Oakmont Stock to be issued in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635each such jurisdiction.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Oakmont Acquisition Corp.)
Proxy Statement; Special Meeting. (a) Buyer shall, in accordance with applicable Law and Buyer’s Organizational Documents: (i) 5.11.1 As promptly as practicable after the date hereof Seller shall prepare and file with the SEC no later than five (5) Business Days following the date of this Agreement, a preliminary proxy statement relating to be used in connection with the solicitation of proxies from for use at the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Shareholder Meeting (the “Proxy Statement”) ). Seller and Purchaser shall use commercially reasonable efforts to be mailed respond to Buyer’s stockholders no later than the later of (x) the expiration any comments of the ten (10)-day period required SEC and its staff, and Seller shall file a definitive Proxy Statement as soon as reasonably practicable following resolution of any SEC comments and mail to its shareholders the Proxy Statement and all other proxy materials for such Shareholder Meeting. Each of Seller and Purchaser shall promptly correct any information provided by SEC Rule 14a-6 it for use in the Proxy Statement if and (y) if to the SEC advises Buyer extent that it will review shall have become false or misleading in any material respect. If necessary, in order to comply with applicable securities laws, after the preliminary Proxy Statement shall have been so mailed, Seller shall promptly circulate amended, supplemental or supplemented proxy statementmaterial, and, if required in connection therewith, resolicit proxies. Subject to Section 5.10, the day following Seller Board shall recommend that the SEC staff’s clearance stockholders of Seller vote to authorize and approve the preliminary proxy statement transactions contemplated by this Agreement (the “Mailing DateSeller Board Recommendation”) and shall include in the Proxy Statement such recommendation, subject to the other terms of this Agreement; provided, however, that the Seller Board may fail to make, or withdraw, modify or change such recommendation, and shall not be required to include such recommendation in the Proxy Statement, if it shall have made a Change of Recommendation.
5.11.2 Seller shall, in accordance with the General Corporation Law of the State of Delaware (Bthe “DGCL”) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause Seller’s Organizational Documents, establish a special record date for, duly call, give notice of, convene and hold a meeting of its stockholders shareholders (the “Special Shareholder Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Shareholder Approval and the other matters described in this Section 5.11.2 as promptly as reasonably practicable following the date upon which the Proxy Statement is cleared by the SEC (with the record date and meeting date to be set by the Seller Board after consultation with Purchaser). Seller shall use commercially reasonable efforts to solicit from its shareholders proxies for the purposes of obtaining the Shareholder Approval and to obtain Shareholder Approval in accordance with the DGCL, Seller’s Organizational Documents and the Exchange Act. Seller shall, upon the reasonable request of Purchaser, advise Purchaser at least on a daily basis on each of the last five Business Days prior to the date of the Shareholder Meeting as to the aggregate tally of proxies received by Seller with respect to the Shareholder Approval. The Proxy Statement shall include Without the recommendation prior written consent of Purchaser, the Board adoption of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement transactions contemplated hereby and the anticipated dissolution of Seller shall not incorporate be the only matters (other than procedural matters) that Seller shall propose to be acted on by reference any information from any other filing made with the SEC. shareholders of Seller Parent at the Shareholder Meeting.
5.11.3 Purchaser shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries Purchaser as Buyer may be reasonably request requested in connection with the preparation and filing with the SEC of the Proxy StatementStatement so as to comply with Applicable Law. Prior Purchaser and its counsel shall be given a reasonable opportunity to filing review and comment on the preliminary and definitive Proxy Statement before such document (or mailing any amendment or supplement thereto) is filed with the SEC, and Seller shall consider in good faith in such document any comments reasonably and timely proposed by Purchaser and its counsel. Seller shall (i) as promptly as practicable after receipt thereof, provide Purchaser and its counsel with copies of any written comments, and advise Purchaser and its counsel of any comments, with respect to the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of received from the SEC with respect theretoor its staff, Buyer shall (ii) provide Seller Parent with an Purchaser and its counsel a reasonable opportunity to review Seller’s proposed response to such comments, and comment on (iii) consider for inclusion in Seller’s written response to such document or response.
(b) Buyer shall comply with all applicable provisions of comments any input reasonably and rules under the Exchange Act timely proposed by ▇▇▇▇▇▇▇▇▇ and all applicable provisions its counsel. Purchaser hereby represents, covenants and agrees that none of the DGCL information to be supplied by or on behalf of Purchaser or any Affiliate thereof for inclusion or incorporation by reference in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will notshall, as at the date it is first mailed to the shareholders of Seller or at the time of the filing date Shareholders Meeting or at the time of the Proxy Statement (or any amendment or supplement thereto) or as of the date of the Special Meetingthereof, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements madetherein, in the light of the circumstances under which they were are made, not misleading (provided misleading; provided, however, that Buyer shall not be responsible for no representation or warranty is made by Purchaser with respect to statements made or incorporated by reference therein to the accuracy or completeness of any extent based on information relating to Seller Parent furnished supplied by Seller Parent for inclusion in the Proxy Statement).
(c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file connection with the SEC the preliminary or definitive Proxy Statement and include in preparation of the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval inclusion or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635incorporation by reference therein.
Appears in 1 contract
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Parent from the Company of all financial and other information relating to the Company as Parent may reasonably request for its preparation, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Parent shall prepare and file with the SEC no later than five under the Exchange Act, and with all other applicable regulatory bodies, proxy materials for the purpose of soliciting proxies from holders of Parent Common Stock to vote in favor of (5i) Business Days following the date adoption of this AgreementAgreement and the approval of the Merger (“Parent Stockholder Approval”), (ii) the change of the name of Parent to a preliminary name selected by the Company (the “Name Change Amendment”), (iii) an increase in the number of authorized shares of Parent Common Stock to 75,000,000 (the “Capitalization Amendment”), (iv) an amendment to remove the preamble and sections A through D, inclusive of Article Sixth from Parent’s Certificate of Incorporation from and after the Closing and to redesignate section E of Article Sixth as Article Sixth, and (v) the adoption of an Incentive Stock Option Plan (the “Parent Plan”) at a meeting of holders of Parent Common Stock to be called and held for such purpose (the “Special Meeting”). The Parent Plan shall provide that an aggregate of 2,850,000 shares of Parent Common Stock (or such higher number of shares as shall be agreed to by Parent and the Company) shall be reserved for issuance pursuant to the Parent Plan. Such proxy materials shall be in the form of a proxy statement relating to be used for the solicitation purpose of soliciting such proxies from the stockholders holders of Buyer Parent Common Stock and also for the Buyer Stockholder Approval and (A) respond promptly purpose of issuing the Parent Common Stock to any comments made by holders of Company Capital Stock in connection with the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Merger (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval). The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Company shall furnish to Buyer Parent all information concerning Seller the Company as Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer The Company and its counsel shall provide Seller Parent with be given an opportunity to review and comment on the Proxy Statement prior to its filing with the SEC. Parent, with the assistance of the Company, shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use reasonable best efforts to cause the Proxy Statement to be declared effective by the SEC as promptly as practicable. Parent shall also take any and all such document actions to satisfy the requirements of the Securities Act and the Exchange Act. Prior to the Closing Date, Parent shall use its reasonable best efforts to cause the shares of Parent Common Stock to be issued pursuant to the Merger to be registered or responsequalified under all applicable Blue Sky Laws of each of the states and territories of the United States in which it is believed, based on information furnished by the Company, holders of the Company Capital Stock and Notes reside and to take any other such actions that may be necessary to enable the Parent Common Stock to be issued pursuant to the Merger in each such jurisdiction.
(b) Buyer As soon as practicable following the approved by the SEC, Parent shall distribute the Proxy Statement to the holders of Parent Common Stock and, pursuant thereto, shall call the Special Meeting in accordance with the Delaware General Corporation Law (“DGCL”) and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the adoption of this Agreement and the approval of the Merger and the other matters presented for approval or adoption at the Special Meeting. Parent shall also distribute the Proxy Statement to the holders of Company Capital Stock for informational purposes and shall include therewith a notice, prepared by the Company, advising such holders of their dissenters’ rights pursuant to the CGCL.
(c) Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer Parent shall ensure that the Proxy Statement will does not, as of the filing date of on which the Proxy Statement (or any amendment or supplement thereto) or is first distributed to stockholders of Parent, as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer Parent shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company for inclusion in the Proxy Statement). The Company represents and warrants that the information relating to the Company supplied by the Company for inclusion in the Proxy Statement will not as of the date on which the Proxy Statement is declared effective (or any amendment or supplement thereto) or at the time of the Special Meeting contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(cd) Neither Buyer nor the Board Parent, acting through its board of Directors of Buyer directors, shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders Parent Common Stock vote in favor of the issuance adoption of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635approval of the Merger, and shall otherwise use reasonable best efforts to obtain the Parent Stockholder Approval.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Ithaka Acquisition Corp)
Proxy Statement; Special Meeting. (ai) Buyer The Company, at the direction of the Board of Directors, shall, in accordance with applicable Law law and Buyerthe Certificate of Incorporation and Bylaws, duly call, give notice of, convene and hold a special meeting of its stockholders (the “Stockholder Meeting”) as promptly as practicable after the mailing of the Proxy Statement (as defined below) to the Company’s Organizational Documents: stockholders (iand in any event no later than forty-five (45) days after the mailing of the Proxy Statement) for the purpose of considering and taking action on proposals to (1) if required to consummate the Proposed Transactions, amend the Company’s certificate of incorporation to increase the number of authorized shares of Common Stock from 25,000,000 shares to 45,000,000 shares (the “Authorized Shares Proposal”) and (2) approve the issuance and sale of the Common Shares hereunder pursuant to Nasdaq Listing Rule 5635 (the “Nasdaq Approval Proposal”).
(ii) As soon as reasonably practicable after the date hereof, the Company, at the direction of the Board of Directors, shall prepare and file with the SEC no later than five (5) Business Days following SEC, pursuant to and in accordance with Regulation 14A under the date of this Agreement1934 Act, a preliminary proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) and form of proxy for the consideration and approval by the holders of shares of Common Stock of the Authorized Shares Proposal and the Nasdaq Approval Proposal and shall cause the Proxy Statement and form of proxy to be mailed disseminated to Buyer’s stockholders no later than holders of shares of Common Stock in accordance with the later of (x) the expiration applicable requirements of the ten (10)-day period required by SEC Rule 14a-6 1934 Act and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approvalapplicable law. The Proxy Statement shall include the recommendation notice of meeting in the Board of Directors of Buyer that stockholders vote in favor of form required by the issuance of Buyer Common Stock pursuant to this Agreement and the FinancingDelaware General Corporation Law. The Proxy Statement Buyer shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall promptly furnish to Buyer the Company all information concerning Seller Parent and its Subsidiaries as the Buyer that may be required by applicable law or reasonably request requested by the Company for inclusion in connection with the preparation of the Proxy Statement. Prior The Company agrees (1) to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding use its reasonable best efforts to any comments of the SEC with respect thereto, Buyer shall provide Seller Parent with an opportunity to review and comment on such document or response.
(b) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement and form of proxy as filed by it will not, as comply in all material respects with the applicable provisions of the filing date of 1934 Act and (2) that the information in the Proxy Statement and form of proxy (excluding any information supplied to the Buyer by or any amendment or supplement thereto) or as on behalf of the date of the Special Meeting, Buyer for inclusion therein) will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements madetherein, in the light of the circumstances under which they were made, not misleading. The Buyer agrees that the information in the Proxy Statement that was supplied by it to the Company for inclusion therein 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 were made, not misleading. The Company agrees to use its commercially reasonable efforts to respond promptly to any comments of the SEC or its staff with respect to the Proxy Statement and form or proxy, and each of the Company and the Buyer agrees to promptly correct any information provided by it for use in the Proxy Statement and form of proxy if and to the extent that such information shall become false or misleading in any material respect or as otherwise required by applicable law. The Company shall use its commercially reasonable efforts take all steps necessary to amend or supplement the Proxy Statement and form of proxy and to cause the Proxy Statement and form of proxy, as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable law. The Buyer and its counsel shall be given reasonable opportunity to review and comment on the Proxy Statement and form of proxy (provided that including any amendments or supplements thereto) before they are filed with the SEC or disseminated to holders of shares of Common Stock entitled to vote at the stockholder meeting. The Company shall provide the Buyer shall not be responsible for the accuracy or completeness and its counsel with copies of any information relating written comments, and shall inform them of any oral comments, that the Company or its counsel receives from the SEC or its staff with respect to Seller Parent furnished by Seller Parent for inclusion the Proxy Statement and form of proxy promptly after the receipt of such comments and shall give the Buyer and its counsel a reasonable opportunity to review and comment on any proposed written or oral responses to such comments.
(iii) The Board of Directors shall recommend that the holders of Common Stock approve and adopt the Authorized Shares Proposal and the Nasdaq Approval Proposal (the “Stockholder Vote Recommendations”) and shall cause the Stockholder Vote Recommendations to be included in the Proxy Statement. Subject to Section 4(k)(v).
(c) Neither Buyer nor , unless this Agreement has been terminated pursuant to Section 8, the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) not withdraw, modify or qualify, qualify the Stockholder Vote Recommendations in any manner or publicly propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635do so.
Appears in 1 contract
Sources: Stock Purchase Agreement (Professional Diversity Network, Inc.)
Proxy Statement; Special Meeting. As promptly as practicable following the Closing Date, and in any event within ten (a10) Buyer shallBusiness Days of the Closing Date, in accordance with applicable Law and Buyer’s Organizational Documents: (i) the Company shall prepare and file with the SEC no later than five U.S. Securities and Exchange Commission (5the “SEC”) Business Days following the date of this Agreement, a preliminary form of proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval. The Proxy Statement shall include the recommendation shareholders of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement Company (as so amended and the Financing. The Proxy Statement shall not incorporate by reference any information from together with any other filing made with amendments thereof or supplements thereto, the SEC. Seller Parent shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the “Proxy Statement”) at which shareholders shall be asked to approve the Amendment. Prior to filing Notwithstanding the Proxy Statement or mailing foregoing, the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer Company shall provide Seller Parent the Investors with an a reasonable opportunity to review and comment on such document or response.
(b) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the such Proxy Statement shall be in a form reasonably acceptable to the Investors prior to its filing with the SEC. The Company will not, use reasonable best efforts to cause the definitive Proxy Statement to be mailed to the Company’s shareholders as of promptly as reasonably practicable after confirmation from the filing date of SEC that it has no further comments on the Proxy Statement (or any amendment that the Proxy Statement is otherwise not to be reviewed by the SEC or supplement thereto) or no notice of review is received within 10 days of filing the preliminary Proxy Statement, and in either event such mailing shall occur as soon as practicable following the 10th day following the date of filing of the date preliminary Proxy Statement). Except with respect to the Information with respect to the Investors to be provided to the Company expressly for inclusion in the Proxy Statement as provided for below, the Company will cause the information included in the Proxy Statement, at the time of the mailing or filing with the SEC of the Proxy Statement or any amendments or supplements thereto, and at the time of the Special Meeting, not to contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements madetherein, in the light of the circumstances under which they were made, not misleading (misleading. Each Investor shall provide to the Company all information concerning such Investor as may be reasonably requested by the Company in connection with the preparation of the Proxy Statement and shall otherwise reasonably assist and cooperate with the Company in the preparation of the Proxy Statement and resolution of comments of the SEC or its staff related thereto; provided that Buyer the Company shall not be responsible give the Investor a reasonable opportunity to review revised drafts of the Proxy Statement and related filings and draft responses to the SEC and its staff related to the resolution of such comments and shall consider in good faith comments proposed by the Investors for incorporation in such drafts, correspondence and filings; provided, further, to the accuracy extent the disclosure in such revised drafts of the Proxy Statement and related filings or completeness of any such responses to the SEC and its staff relate to the Investors, the Company shall include in such drafts, correspondence and filings all comments reasonably proposed by the Investors. Each Investor will use reasonable best efforts to cause the information relating to Seller Parent furnished supplied by Seller Parent it expressly for inclusion in the Proxy Statement).
(c) Neither Buyer nor , at the Board time of Directors the mailing of Buyer shall (i) fail to (A) callthe Proxy Statement or any amendments or supplements thereto, notice or hold and at the time of the Special Meeting, (B) prepare and file not to 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; provided that no representation or warranty shall be made by such Investor with the SEC the preliminary respect to any information included or definitive Proxy Statement and include incorporated by reference in the Proxy Statement Statement, other than the recommendation information supplied by such Investor expressly for inclusion or incorporation by reference in the Proxy Statement. The Company shall mail to the holders of Common Stock determined as of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders record date established for the Buyer Stockholder Approval Special Meeting a Proxy Statement (the date the Company elects to take such action or (ii) withdrawis required to take such action, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635“Proxy Date”).
Appears in 1 contract
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Parent from the Company and Noble of all financial and other information relating to the Company and Noble as Parent may reasonably request for its preparation, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Parent shall prepare and file with the SEC no later than five (5) Business Days following under the date of this AgreementExchange Act, and with all other applicable regulatory bodies, a preliminary proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) to be mailed used for the purpose of soliciting proxies from holders of Parent Common Stock to Buyer’s stockholders no later than the later vote in favor of (xi) the expiration adoption of this Agreement and the approval of the ten Transaction Merger, (10)-day period required by SEC Rule 14a-6 ii) the change of the name of Parent to “Allied Esports Entertainment, Inc.”, (iii) an increase in the number of authorized shares of Parent Common Stock to a number mutually agreeable to Parent and the Company, (yiv) if amendments to Parent’s Certificate of Incorporation to be effective from and after the SEC advises Buyer Closing to amend Article Sixth thereof so that it the existence of Parent shall be perpetual and to remove all SPAC-related provisions that will review the preliminary proxy statement, the day no longer be applicable to Parent following the SEC staff’s clearance Closing, (v) the election to the board of directors of Parent of the preliminary proxy statement individuals identified on Schedule 6.3 (the matters set forth in clauses (i) through (v) being referred to herein as the “Parent Stockholder Matters”), (vi) the adoption of an incentive stock option plan (the “Mailing DateParent Plan”) ), and (Bvii) solicit proxies from its stockholders for such other matters as mutually agreed upon between the Buyer Stockholder Approval Company and (ii) cause Parent at a special meeting of its stockholders holders of Parent Common Stock to be called and held for such purpose (the “Special Meeting”). The Parent Plan shall provide that an aggregate of fifteen percent (15%) of the shares of Parent Common Stock to be duly called, noticed and held no later than outstanding at Closing shall be reserved for issuance pursuant to the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder ApprovalParent Plan. The Proxy Statement Company and Noble shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall each furnish to Buyer Parent all information concerning Seller the Company and/or Noble as Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer The Company and its counsel and Noble and its counsel shall provide Seller Parent with be given an opportunity to review and comment on such document or responsethe preliminary Proxy Statement prior to its filing with the SEC, and any SEC comments on the Proxy Statement received by Parent after the initial filing of the Proxy Statement. Parent, with the assistance of the Company and Noble, shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable best efforts to cause the Proxy Statement to be approved by the SEC as promptly as practicable. Parent shall also take any and all actions required to satisfy the requirements of the Securities Act and the Exchange Act.
(b) Buyer As soon as practicable following the approval for distribution of the Proxy Statement by the SEC, Parent shall distribute the Proxy Statement to the holders of Parent Common Stock and, pursuant thereto, shall call the Special Meeting in accordance with the Corporate Law and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the Parent Stockholder Matters, adoption of the Parent Plan and the other matters presented for approval or adoption at the Special Meeting.
(c) Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL Corporate Law in the preparation, filing filing, and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer Parent shall ensure that the Proxy Statement will does not, as of the filing date on which it is first distributed to holders of the Proxy Statement (or any amendment or supplement thereto) or Parent Common Stock, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer Parent shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or Noble or any other information furnished by Seller Parent the Company or Noble for the purpose of inclusion in the Proxy Statement). The Company represents and warrants that the information relating to the Company supplied by the Company for the purpose of inclusion in the Proxy Statement will not as of the date on which the Proxy Statement (or any amendment or supplement thereto) is first distributed to holders of Parent Common Stock or at the time of the Special Meeting contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading. Noble represents and warrants that the information relating to Noble supplied by Noble for the purpose of inclusion in the Proxy Statement will not as of the date on which the Proxy Statement (or any amendment or supplement thereto) is first distributed to holders of Parent Common Stock or at the time of the Special Meeting contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(cd) Neither Buyer nor the Parent, acting through its Board of Directors of Buyer Directors, shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of the its Board of Directors that the holders of Buyer that stockholders Parent Common Stock vote in favor of the issuance adoption of Buyer Common StockParent Stockholders Matters and Parent Plan, all and shall otherwise use commercially reasonable best efforts to obtain the approval of the Parent Stockholder Matters, Parent Plan and such other matters as required mutually agreed upon between the Company and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Black Ridge Acquisition Corp.)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after the date hereof, Plastec shall deliver to GSME audited consolidated financial statements (including any related notes thereto) of Plastec for the Fiscal Year ended April 30, 2010 (the “2010 Audited Financial Statements”). As soon as is reasonably practicable after receipt by GSME from Plastec of all financial (including the 2010 Audited Financial Statements) and other information relating to Plastec as GSME may reasonably request for its preparation, GSME shall prepare proxy materials for the purpose of soliciting proxies from holders of GSME Shares to vote, at a meeting of holders of GSME Shares to be called and held for such purpose (the “Special Meeting”), in favor of (i) the approval of the Merger and the transactions contemplated by this Agreement (the “GSME Shareholder Approval”), (ii) the change of the name of GSME to a name mutually agreed upon by GSME and Plastec, (iii) an increase in the number of authorized ordinary GSME Shares to one hundred million (100,000,000) and (iv) an adjournment of the Special Meeting if, at the time it is called to order, there are insufficient votes to obtain GSME Shareholder Approval or the holders of eighty-one percent (81%) or more in interest of the GSME Shares issued in GSME’s IPO and outstanding immediately before the Closing shall have exercised their rights to convert their shares into a pro rata share of the Trust Fund in accordance with applicable Law and BuyerGSME’s Organizational Charter Documents: (i) prepare and file with . Such proxy materials shall be in the SEC no later than five (5) Business Days following the date form of this Agreement, a preliminary proxy statement relating to be used for the solicitation purpose of soliciting such proxies from the stockholders holders of Buyer GSME Shares for the Buyer Stockholder Approval and (A) respond promptly matters to any comments made by be acted upon at the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Special Meeting (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval). The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Plastec shall furnish to Buyer GSME all information concerning Seller Parent and its Subsidiaries Plastec as Buyer GSME may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer Plastec and its counsel shall provide Seller Parent with an be given a reasonable opportunity to review and comment on such document proxy materials prior to their distribution to GSME’s shareholders and GSME will not distribute any documents containing information that Plastec has reasonably determined is incorrect or responsemisleading and notified GSME in writing thereof.
(b) Buyer As soon as practicable following the preparation of the definitive Proxy Statement, GSME shall comply distribute the Proxy Statement to the holders of GSME Shares and, pursuant thereto, shall call the Special Meeting in accordance with the Companies Law (Revised) of the Cayman Islands (the “Companies Law”) and GSME’s Charter Documents and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the approval of the Merger and the other transactions contemplated by this Agreement and the other matters presented for approval or adoption at the Special Meeting.
(c) GSME shall use its best efforts to ensure that the Proxy Statement (i) includes the information GSME believes would have been required to be provided to shareholders had GSME not been a “foreign private issuer” (as defined in the Exchange Act) but still had a class of equity securities registered under Section 12 of the Exchange Act and (ii) complies with all applicable provisions of the Companies Law and rules under the Exchange Act and all applicable provisions of the DGCL GSME’s Charter Documents in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer GSME shall ensure that the Proxy Statement will does not, as of the filing date of on which the Proxy Statement (or any amendment or supplement thereto) or is first distributed to the shareholders of GSME, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer GSME shall not be responsible for the accuracy or completeness of any information relating to Seller Parent Plastec or any other information furnished by Seller Parent Plastec for inclusion in the Proxy Statement).
(c) Neither Buyer nor . Plastec represents and warrants that so long as GSME is in compliance with the Board terms of Directors this Section 6.1, the information relating to Plastec supplied by Plastec for inclusion in the Proxy Statement will not, as of Buyer shall (i) fail the date on which the Proxy Statement is first distributed to (A) call, notice the shareholders of GSME or hold at the time of the Special Meeting, contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(Bd) prepare and file with the SEC the preliminary or definitive Proxy Statement and GSME, acting through its Board of Directors, shall include in the Proxy Statement the unanimous recommendation of the its Board of Directors that the holders of Buyer that stockholders GSME Shares vote in favor of the issuance approval of Buyer Common Stock, all as required and pursuant to the transactions contemplated by this Agreement, and shall otherwise use reasonable best efforts to obtain the GSME Shareholder Approval.
(Ce) solicit proxies from its stockholders Plastec and each of the Plastec Shareholders shall cooperate with GSME and use commercially reasonable efforts to provide all information reasonably requested by GSME in connection with any application or other filing made to secure listing for trading or quotation of GSME’s securities on the Buyer Stockholder Approval Nasdaq Stock Market, the NYSE Amex LLC or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve another national securities exchange following the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635Effective Time.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (GSME Acquisition Partners I)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Parent from the Company of all financial and other information relating to the Company as Parent may reasonably request for its preparation, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Parent shall prepare and file with the SEC no later than five (5) Business Days following under the date of this AgreementExchange Act, a preliminary and with all other applicable regulatory bodies, proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date materials for the purpose of obtaining the Buyer Stockholder Approval. The Proxy Statement shall include the recommendation soliciting proxies from holders of the Board of Directors of Buyer that stockholders Parent Common Stock to vote in favor of (i) the issuance adoption of Buyer Common Stock pursuant to this Agreement and the Financingapproval of the Merger ("Parent Stockholder Approval"), (ii) the change of the name of Parent to a name selected mutually by Parent and the Company (the "Name Change Amendment"), (iii) an increase in the number of authorized shares of Parent Common Stock to 75,000,000 (the "Capitalization Amendment"), (iv) an amendment to remove the preamble and sections A through D, inclusive of Article Sixth from Parent's Certificate of Incorporation from and after the Closing and to redesignate section E of Article Sixth as Article Sixth, and (v) the adoption of an Incentive Stock Option Plan (the "Parent Plan") at a meeting of holders of Parent Common Stock to be called and held for such purpose (the "Special Meeting"). The Parent Plan shall provide that an aggregate of no less than 1,140,000 shares of Parent Common Stock shall be reserved for issuance pursuant to the Parent Plan. Such proxy materials shall be in the form of a proxy statement to be used for the purpose of soliciting such proxies from holders of Parent Common Stock (the "Proxy Statement shall not incorporate by reference any information from any other filing made with the SECStatement"). Seller Parent The Company shall furnish to Buyer Parent all information concerning Seller the Company as Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer The Company and its counsel shall provide Seller Parent with be given an opportunity to review and comment on the preliminary Proxy Statement prior to its filing with the SEC. Parent, with the assistance of the Company, shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use reasonable best efforts to cause the Proxy Statement to be approved by the SEC as promptly as practicable. Parent shall also take any and all actions required to satisfy the requirements of the Securities Act and the Exchange Act. Prior to the Closing Date, Parent shall use its reasonable best efforts to cause the shares of Parent Common Stock to be issued pursuant to the Merger to be registered or qualified under all applicable Blue Sky Laws of each of the states and territories of the United States in which it is believed, based on information furnished by the Company, holders of the Company Common Stock reside and in which such document registration or responsequalification is required and to take any other such actions that may be necessary to enable the Parent Common Stock to be issued pursuant to the Merger in each such jurisdiction.
(b) Buyer As soon as practicable following the approval of the Proxy Statement by the SEC, Parent shall distribute the Proxy Statement to the holders of Parent Common Stock and, pursuant thereto, shall call the Special Meeting in accordance with the DGCL and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the adoption of this Agreement and the approval of the Merger and the other matters presented to the stockholders of Parent for approval or adoption at the Special Meeting, including, without limitation, the matters described in Section 5.1(a).
(c) Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer Parent shall ensure that the Proxy Statement will does not, as of the filing date on which it is first distributed to stockholders of the Proxy Statement (or any amendment or supplement thereto) or Parent, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer Parent shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company for inclusion in the Proxy Statement). The Company represents and warrants that the information relating to the Company supplied by the Company for inclusion in the Proxy Statement will not as of the date on which the Proxy Statement (or any amendment or supplement thereto) is first distributed to stockholders of Parent or at the time of the Special Meeting contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(cd) Neither Buyer nor the Board Parent, acting through its board of Directors of Buyer directors, shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders Parent Common Stock vote in favor of the issuance adoption of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635approval of the Merger, and shall otherwise use reasonable best efforts to obtain the Parent Stockholder Approval.
Appears in 1 contract
Proxy Statement; Special Meeting. (a) Buyer The Company, at the direction of the Board of Directors, shall, in accordance with applicable Law law and Buyerthe Certificate of Incorporation and Bylaws, duly call, give notice of, convene and hold a special meeting of its stockholders (the “Stockholder Meeting”) as promptly as practicable after the mailing of the Proxy Statement (as defined below) to the Company’s Organizational Documents: stockholders (iand in any event no later than forty-five (45) days after the mailing of the Proxy Statement) for the purpose of considering and taking action on proposals to (1) if required to consummate the Proposed Transactions, amend and restate the Company’s certificate of incorporation to increase the number of authorized Shares (the “Authorized Shares Proposal”), remove certain transfer restrictions set forth in Section 4.4 of the Certificate of Incorporation (the “Transfer Restriction Removal Proposal”), and eliminate the Class B common stock and the Series B Junior Participating Preferred Stock (the “Elimination Proposal”), (2) approve the issuance and sale of the Purchase Shares hereunder pursuant to Nasdaq Listing Rule 5635 (the “Nasdaq Approval Proposal”), and (3) approve the Plan (the “Plan Proposal”). The Authorized Shares Proposal, the Transfer Restriction Removal Proposal, the Elimination Proposal, the Nasdaq Approval Proposal, and the Plan Proposal are referred to as the “Proxy Proposals.”
(b) As soon as reasonably practicable after the date hereof, the Company, at the direction of the Board of Directors, shall prepare and file with the SEC no later than five (5) Business Days following SEC, pursuant to and in accordance with Regulation 14A under the date of this AgreementExchange Act, a preliminary proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) and form of proxy for the consideration and approval by the holders of Shares of the Proxy Proposals and shall cause the Proxy Statement and form of proxy to be mailed disseminated to Buyer’s stockholders no later than holders of Shares in accordance with the later of (x) the expiration applicable requirements of the ten (10)-day period required by SEC Rule 14a-6 Exchange Act and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approvalapplicable law. The Proxy Statement shall include the recommendation notice of meeting in the Board of Directors of Buyer that stockholders vote in favor of form required by the issuance of Buyer Common Stock pursuant to this Agreement and the FinancingDelaware General Corporation Law. The Proxy Statement Purchaser shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall promptly furnish to Buyer the Company all information concerning Seller Parent and its Subsidiaries as Buyer the Purchaser that may be required by applicable law or reasonably request requested by the Company for inclusion in connection with the preparation of the Proxy Statement. Prior The Company agrees (1) to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding use its reasonable best efforts to any comments of the SEC with respect thereto, Buyer shall provide Seller Parent with an opportunity to review and comment on such document or response.
(b) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement and form of proxy as filed by it will not, as comply in all material respects with the applicable provisions of the filing date of Exchange Act and (2) that the information in the Proxy Statement and form of proxy (excluding any information supplied to the Purchaser by or any amendment or supplement thereto) or as on behalf of the date of the Special Meeting, Purchaser for inclusion therein) will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements madetherein, in the light of the circumstances under which they were made, not misleading (provided misleading. The Purchaser agrees that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent for inclusion in the Proxy Statement)Statement that was supplied by it to the Company for inclusion therein 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 were made, not misleading. The Company agrees to use its commercially reasonable efforts to respond promptly to any comments of the SEC or its staff with respect to the Proxy Statement and form or proxy, and each of the Company and the Purchaser agrees to promptly correct any information provided by it for use in the Proxy Statement and form of proxy if and to the extent that such information shall become false or misleading in any material respect or as otherwise required by applicable law. The Company shall use its commercially reasonable efforts to take all steps necessary to amend or supplement the Proxy Statement and form of proxy and to cause the Proxy Statement and form of proxy, as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of Shares, in each case as and to the extent required by applicable law. The Purchaser and its counsel shall be given reasonable opportunity to review and comment on the Proxy Statement and form of proxy (including any amendments or supplements thereto) before they are filed with the SEC or disseminated to holders of Shares entitled to vote at the Stockholder Meeting. The Company shall provide the Purchaser and its counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel receives from the SEC or its staff with respect to the Proxy Statement and form of proxy promptly after the receipt of such comments and shall give the Purchaser and its counsel a reasonable opportunity to review and comment on any proposed written or oral responses to such comments.
(c) Neither Buyer nor The Board of Directors shall recommend that the holders of Shares approve the Proxy Proposals (the “Stockholder Vote Recommendations”) and shall cause the Stockholder Vote Recommendations to be included in the Proxy Statement. Subject to Section 3.10, unless this Agreement has been terminated pursuant to Section 4.2, the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) not withdraw, modify or qualify, qualify the Stockholder Vote Recommendations in any manner or publicly propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635do so.
Appears in 1 contract
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Purchaser from the Company of all financial and other information relating to the Company as Purchaser may reasonably request for its preparation, Purchaser shall prepare proxy materials for the purpose of soliciting proxies from holders of Purchaser Stock to vote, at a meeting of holders of Purchaser Stock to be called and held for such purpose (the “Special Meeting”), in favor of (i) the approval of the transactions contemplated by this Agreement (the “Purchaser Stockholder Approval”), (ii) the change of the name of Purchaser to a name selected by Purchaser (the “Name Change Amendment”), (iii) an increase in the number of authorized shares of Company Stock to 200,000,000 and (iv) an adjournment of the Special Meeting if, at the time it is called to order, there are insufficient votes to obtain the Purchaser Stockholder Approval or the holders of forty percent (40%) or more of the shares of Purchaser Stock issued in Purchaser’s initial public offering of securities and outstanding immediately before the Closing shall have exercised their rights to convert their shares into a pro rata share of the Trust Fund in accordance with applicable Law and BuyerPurchaser’s Organizational Charter Documents: (i) prepare and file with . Such proxy materials shall be in the SEC no later than five (5) Business Days following the date form of this Agreement, a preliminary proxy statement relating to be used for the solicitation purpose of soliciting such proxies from the stockholders holders of Buyer Purchaser Stock for the Buyer Stockholder Approval and (A) respond promptly matters to any comments made by be acted upon at the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Special Meeting (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval). The Proxy Statement Company shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant use its reasonable efforts to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall furnish to Buyer Purchaser all information concerning Seller Parent and its Subsidiaries the Company as Buyer Purchaser may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer The Company and its counsel shall provide Seller Parent with be given an opportunity to review and comment on such document proxy materials, including amendments thereto, prior to their distribution to Purchaser’s stockholders and Purchaser will not distribute any documents containing information that the Company has reasonably determined is incorrect or responsemisleading and notified Purchaser in writing thereof.
(b) Buyer As soon as practicable following the preparation of the definitive Proxy Statement, Purchaser shall distribute the Proxy Statement to the holders of Purchaser Stock and, pursuant thereto, shall call the Special Meeting in accordance with the Companies Law of the Cayman Islands (the “Companies Law”) and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the approval of the transactions contemplated by this Agreement and the other matters presented for approval or adoption at the Special Meeting.
(c) Purchaser shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL Companies Law in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer Purchaser shall ensure that the Proxy Statement will does not, as of the filing date of on which the Proxy Statement (or any amendment or supplement thereto) or is first distributed to the stockholders of Purchaser, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer Purchaser shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company for inclusion in the Proxy Statement).
(c) Neither Buyer nor . The Company represents and warrants that the Board information relating to the Company supplied by the Company for inclusion in the Proxy Statement will not, as of Directors the date on which the Proxy Statement is first distributed to the stockholders of Buyer shall (i) fail to (A) call, notice Purchaser or hold at the time of the Special Meeting, contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(Bd) prepare and file with the SEC the preliminary or definitive Proxy Statement and Purchaser, acting through its board of directors, shall include in the Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders Purchaser Stock vote in favor of the issuance approval of Buyer Common Stock, all as required and pursuant to the transactions contemplated by this Agreement, and shall otherwise use reasonable best efforts to obtain Purchaser Stockholder Approval.
(Ce) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement The Company and the Financing Shareholder shall cooperate with Purchaser and use its reasonable efforts to provide all information reasonably requested by Purchaser in accordance connection with NASDAQ Rule 5635any application or other filing made to maintain or secure listing for trading or quotation of Purchaser’s securities on the Nasdaq Stock Exchange or the OTC BB following the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (CS China Acquisition Corp.)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Parent from the Company of all financial and other information relating to the Company as Parent may reasonably request for its preparation, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Parent shall prepare and file with the SEC no later than five under the Exchange Act, and with all other applicable regulatory bodies, proxy materials (5the "Proxy Statement") Business Days following for the date purpose of soliciting proxies from holders of Parent Common Stock to vote in favor of (i) the adoption of this AgreementAgreement and the approval of the Merger (“Parent Stockholder Approval”), (ii) the change of the name of Parent to a preliminary proxy statement relating name mutually acceptable to Parent and the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Company (the “Proxy StatementName Change Amendment”), (iii) an increase in the number of authorized shares of Parent Common Stock to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement 55,000,000 (the “Mailing DateCapitalization Amendment”), (iv) an amendment to remove sections A through E, inclusive of Article VI from Parent’s Certificate of Incorporation from and after the Closing and to redesignate Article VII as Article VI and Article VIII as Article VII, respectively, (v) the approval and adoption of the issuance of options to purchase shares of Company Common Stock to ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ pursuant to each of the Employment Agreements, and (Bvi) solicit proxies from its stockholders for the Buyer Stockholder Approval election as directors of Parent those persons listed in Schedule 6.1 and (ii) cause two more persons as chosen pursuant to Section 6.2 at a special meeting of its stockholders holders of Parent Common Stock to be called and held for such purpose (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval). The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Company shall furnish to Buyer Parent all information concerning Seller the Company as Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer The Company and its counsel shall provide Seller Parent with be given an opportunity to review and comment on the Proxy Statement prior to its filing with the SEC. Parent, with the assistance of the Company, shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use best efforts to cause the Proxy Statement to be approved for issuance by the SEC as promptly as practicable. Parent shall also take any and all such document actions to satisfy the requirements of the Securities Act and the Exchange Act. Prior to the Closing Date, Parent shall use its reasonable best efforts to cause the shares of Parent Common Stock to be issued pursuant to the Merger to be registered or responsequalified under all applicable Blue Sky Laws of each of the states and territories of the United States in which it is believed, based on information furnished by the Company, holders of the Company Common Stock reside and to take any other such actions which may be necessary to enable the Parent Common Stock to be issued pursuant to the Merger in each such jurisdiction.
(b) Buyer As soon as practicable following its approval by the SEC, Parent shall distribute the Proxy Statement to the holders of Parent Common Stock and, pursuant thereto, shall call the Special Meeting in accordance with the DGCL and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the adoption of this Agreement and the approval of the Merger and the other matters presented to the stockholders of Parent for approval or adoption at the Special Meeting.
(c) Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer the Company shall ensure that the Proxy Statement will does not, as of the filing date on which it is distributed to the holders of the Proxy Statement (or any amendment or supplement thereto) or Parent Common Stock, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer Parent shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company for inclusion in the Proxy Statement). The Company represents and warrants that the information relating to the Company supplied by the Company for inclusion in the Proxy Statement will not as of date of its distribution to the holders of Parent Common Stock (or any amendment or supplement thereto) or at the time of the Special Meeting contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(cd) Neither Buyer nor the Board Parent, acting through its board of Directors of Buyer directors, shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders Parent Common Stock vote in favor of the issuance adoption of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635approval of the Merger, and shall otherwise use reasonable best efforts to obtain the Parent Stockholder Approval.”
Appears in 1 contract
Sources: Agreement and Plan of Merger (Israel Technology Acquisition Corp.)
Proxy Statement; Special Meeting. (a) Buyer shall, in accordance with applicable Law and Buyer’s Organizational Documents: (i) prepare and file with the SEC no later than five (5) Business Days following As soon as is reasonably practicable after the date of this Agreement, the Purchaser shall prepare and file with the Securities and Exchange Commission (“Commission”) under the Exchange Act proxy materials for the purpose of soliciting proxies from holders of Purchaser Stock to vote in favor of (i) the approval of the transactions contemplated by this Agreement (the “Purchaser Stockholder Approval”), (ii) the change of the name of the Purchaser to a preliminary name selected by the Purchaser, (iii) an amendment to remove the preamble and sections A through D, inclusive, of Article Sixth from the Purchaser’s Certificate of Incorporation from and after the Closing and to redesignate section E of Article Sixth as Article Sixth, and (v) the adoption of an Incentive Stock Option Plan or other equity incentive plan at a meeting of holders of Purchaser Stock to be called and held for such purpose (the “Special Meeting”). Such proxy materials shall be in the form of a proxy statement relating to be used for the solicitation purpose of soliciting such proxies from the stockholders holders of Buyer Purchaser Stock for the Buyer Stockholder Approval and (A) respond promptly matters to any comments made by be acted upon at the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Special Meeting (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval). The Proxy Statement Company shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant use its reasonable efforts to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall furnish to Buyer the Purchaser all information concerning Seller Parent and its Subsidiaries the Company as Buyer the Purchaser may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer The Company and its counsel shall provide Seller Parent with be given an opportunity to review and comment on such document proxy materials, including amendments thereto, prior to their filing with the Commission and the Purchaser will not file any documents containing information that the Company has reasonably determined is incorrect or responsemisleading and notified the Purchaser in writing thereof. The Purchaser, with the assistance of the Company, shall promptly respond to any Commission comments on such proxy materials and shall otherwise use reasonable best efforts to cause the definitive Proxy Statement to be approved by the Commission for distribution to the Purchaser’s stockholders as promptly as practicable.
(b) Buyer As soon as practicable following the approval by the Commission of the distribution of the definitive Proxy Statement, the Purchaser shall distribute the Proxy Statement to the holders of Purchaser Stock and, pursuant thereto, shall call the Special Meeting in accordance with the applicable law and in no event more than 60 days following approval by the Commission of the Proxy Statement and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the approval of the transactions contemplated by this Agreement and the other matters presented for approval or adoption at the Special Meeting.
(c) The Purchaser shall comply with all applicable provisions of and rules under the Exchange Act federal and state (if applicable) securities laws and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer the Purchaser shall ensure that the Proxy Statement will does not, as of the filing date of on which the Proxy Statement (or any amendment or supplement thereto) or is first distributed to the stockholders of the Purchaser, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer the Purchaser shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company for inclusion in the Proxy Statement).
(c) Neither Buyer nor . The Company represents and warrants that the Board information relating to the Company supplied by the Company for inclusion in the Proxy Statement will not, as of Directors the date on which the Proxy Statement is first distributed to the stockholders of Buyer shall (i) fail to (A) call, notice the Purchaser or hold at the time of the Special Meeting, contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(Bd) prepare and file with the SEC the preliminary or definitive Proxy Statement and The Purchaser, acting through its board of directors, shall include in the Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders Purchaser Stock vote in favor of the issuance approval of Buyer Common Stock, all as required and pursuant to the transactions contemplated by this Agreement, and, subject to applicable Law and the exercise of its fiduciary duties, shall not withdraw or modify its recommendation. The Purchaser shall otherwise use its reasonable best efforts to obtain the Purchaser Stockholder Approval and the Management Members shall reasonably cooperate with the Purchaser, including attending and participating in presentation to holders of Purchaser Stock in advance of the Special Meeting.
(e) The Company also shall cooperate with the Purchaser and use its reasonable efforts to provide all information reasonably requested by the Purchaser in connection with any application or other filing made to maintain or secure listing for trading or quotation of the Purchaser’s securities on the American Stock Exchange, Nasdaq or the Over-the-Counter Bulletin Board (“OTC BB”) following the Closing.
(f) Notwithstanding anything to the contrary contained in this Agreement, Purchaser shall bear and pay (i) all costs and expenses incurred in connection with (A) the preparation, filing and mailing of the Proxy Statement, including any amendments or supplements thereto, (B) the preparation, filing and mailing of any other securities filings or correspondence in connection with the transactions contemplated by this Agreement, including, without limitation, any filings made to secure listing for trading of Purchaser’s securities on the American Stock Exchange, Nasdaq, or the OTC BB, (C) solicit proxies from its stockholders calling, giving notice of, convening and holding stockholder meetings for the Buyer purpose of seeking Purchaser Stockholder Approval Approval, and (D) the preparation, filing and mailing of any other documents or materials required solely as a direct result of the acquisition of Holdings by a public company, and (ii) withdrawall reasonable third party fees and disbursements incurred by the Company (other than accounting fees associated with preparation of financial statements to be included in the Proxy Statement) in connection with the Company’s cooperation, modify or qualifyassistance, or propose publicly and review of the foregoing documentation, including, without limitation, reasonable attorney’s fees and expenses. Subject to withdrawSection 2.2(c), modify or qualifythe Company shall bear and pay all costs and expenses incurred in connection with the preparation, delivery and review of the financial statements of the Company and Holdings to be included in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635Proxy Statement (“Accounting Fees”).
Appears in 1 contract
Proxy Statement; Special Meeting. (a) Buyer shallPromptly after consummation of the Offer, in accordance with applicable Law and Buyer’s Organizational Documents: (i) the Company shall prepare and file with the SEC no later than five (5) Business Days following the date of this AgreementSEC, if required by federal securities laws, a preliminary proxy statement relating to form of the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “"Proxy Statement”") to be mailed to Buyer’s the stockholders no later than the later of (x) the expiration of the ten Company in connection with the meeting of such stockholders to consider and vote upon the Merger (10)-day period required by SEC Rule 14a-6 and (y) if the "Special Meeting). The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act. The Company will notify Parent of the receipt of any comments from the SEC advises Buyer that it 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 Parent with copies of all correspondence between the Company 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 prior to its being filed with the SEC and shall give Parent and its counsel the reasonable opportunity to review all amendments and supplements to the preliminary proxy statementProxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with or sent to the SEC. The Company agrees to use its commercially reasonable best efforts, after consultation with the other parties hereto, to respond promptly to all such comments of and requests by the SEC. As promptly as practicable after the Proxy Statement has been cleared by the SEC, the day following Company shall mail the SEC staff’s clearance Proxy Statement to the stockholders of the preliminary proxy statement (Company. If at any time prior to the “Mailing Date”) approval of this Agreement by the Company's stockholders there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company will prepare and (B) solicit proxies from mail to its stockholders for such an amendment or supplement.
(b) The Company shall take all action necessary in connection with applicable Law to duly call, give notice of, convene and hold the Buyer Stockholder Approval Special Meeting as promptly as practicable after the consummation of the Offer to consider and (ii) cause a special meeting of its stockholders (vote upon this Agreement and the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approvaltransactions contemplated hereby. The Proxy Statement Company shall include use its best efforts to obtain the recommendation necessary approval of this Agreement and the Board of Directors of Buyer Merger by its stockholders.
(c) The Company shall, through its Board, recommend that its stockholders vote in favor of the issuance adoption of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made transactions contemplated hereby, subject to the Board's fiduciary duty under applicable Law, exercised after consultation with the SEC. Seller Parent shall furnish to Buyer all information concerning Seller Company's outside legal counsel.
(d) At the Special Meeting, Parent and Sub and its Subsidiaries as Buyer may reasonably request direct and indirect subsidiaries shall vote, or cause to be voted, all Shares owned by them in favor of the Merger.
(e) Notwithstanding the foregoing, in the event that Sub shall acquire at least 90% of the outstanding Shares in connection with the preparation Offer, the Company agrees, at the request of Sub, subject to Article VI, to take all necessary and appropriate action to cause the Merger to become effective as soon as reasonably practicable after such acquisition, without a meeting of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect theretoCompany's stockholders, Buyer shall provide Seller Parent with an opportunity to review and comment on such document or response.
(b) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will not, as of the filing date of the Proxy Statement (or any amendment or supplement thereto) or as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent for inclusion in the Proxy Statement).
(c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635Section 253 of the DGCL.
Appears in 1 contract
Sources: Merger Agreement (Mc Merger Corp)
Proxy Statement; Special Meeting. (a) Buyer shallAs promptly as practicable after the date hereof, in accordance with applicable Law and Buyer’s Organizational Documents: (i) the Parent shall prepare and file with the SEC no later than five (5) Business Days following the date of this Agreement, a preliminary proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Parent Proxy Statement”) ), which shall include proxy materials for the purpose of soliciting proxies from holders of Parent Common Stock to be mailed to Buyer’s stockholders no later than the later vote in favor of (xi) the expiration adoption of this Agreement and the approval of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statementtransactions set forth herein, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause the amendment and restatement of the Parent’s certificate of incorporation in the form attached hereto as Exhibit A, (iii) the adoption of the Stock Incentive Plan and the Cash Bonus Plan and (iv) the change of the Parent’s name to Workflow Corporation, at a special meeting of its stockholders the holders of Parent Common Stock to be called and held for such purpose (the “Special Meeting”) to be duly called, noticed and held no later than ). The Registration Statement shall also include the twelfth (12th) day following the Mailing Date Company Proxy Statement which shall include proxy materials for the purpose of obtaining the Buyer Stockholder Approval. The Proxy Statement shall include the recommendation soliciting proxies from holders of the Board of Directors of Buyer that stockholders Company’s Capital Stock to vote in favor of the issuance adoption of Buyer Common Stock pursuant to this Agreement and the Financing. Mergers.
(b) The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Company shall furnish to Buyer the Parent all information concerning Seller the Company as the Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Parent Proxy Statement. Prior The Parent, with the assistance of the Company, shall promptly respond to any SEC comments on the Parent Proxy Statement, and shall otherwise use commercially reasonable efforts to resolve any such SEC comments relating to the Parent Proxy Statement. Notwithstanding the foregoing, prior to filing the Proxy Statement or mailing the Parent Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer the Parent shall provide Seller Parent the Company and the Securityholders’ Representative with an opportunity to review and comment on such document or response.
(bc) Buyer The Parent shall use its commercially reasonable best efforts to cause the Parent Proxy Statement to be mailed to its stockholders as promptly as practicable after resolution of all SEC comments. Parent shall, as promptly as permitted under applicable Law and in its charter and by-laws, call the Special Meeting and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the adoption of this Agreement and the approval of the transactions set forth therein to the holders of Parent Common Stock for approval or adoption at the Special Meeting.
(d) The Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution mailing of the Parent Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special MeetingMeeting and the issuance of the shares of Parent Common Stock. Without limiting the foregoing, Buyer the Parent shall ensure that the Parent Proxy Statement will does not, as of the filing date on which it is distributed to the holders of the Proxy Statement (or any amendment or supplement thereto) or Parent Common Stock, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer the Parent shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company for inclusion in the Parent Proxy Statement).
. The Company covenants and agrees that the information relating to the Company supplied by the Company for inclusion in the Parent Proxy Statement will not, as of the mailing date of the Parent Proxy Statement (c) Neither Buyer nor or any amendment or supplement thereto), at the Board time of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(Be) prepare and file with the SEC the preliminary or definitive Proxy Statement and The Parent, acting through its board of directors, shall include in the Parent Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders Parent Common Stock vote in favor of the issuance adoption of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and approval of the Financing in accordance with NASDAQ Rule 5635transactions set forth therein, and shall otherwise use commercially reasonable efforts to obtain the Parent Stockholder Approval.
Appears in 1 contract
Proxy Statement; Special Meeting. (a) Buyer shallParent shall use its best efforts to, and the Company shall use best efforts to cooperate with Parent in accordance with applicable Law and Buyer’s Organizational Documents: (i) order to, prepare and file with the SEC no later than five (5) Business Days following under the date of this AgreementExchange Act, and with all other applicable regulatory bodies, a preliminary proxy statement relating pursuant to the solicitation Section 14(a) of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Exchange Act (the “Preliminary Proxy Statement”) as promptly as practicable after the date hereof and on or prior to February 5, 2010, which shall include proxy materials for the purpose of soliciting proxies from holders of the Parent’s Stock to obtain the Parent Stockholder Approval at a meeting of the holders of the Parent’s Stock to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 called and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders held for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders such purpose (the “Special Meeting”) as provided below. Such proxy materials shall be in the form of a proxy statement to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date used for the purpose of obtaining soliciting such proxies from holders of the Buyer Stockholder ApprovalParent’s Stock. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Company shall furnish to Buyer the Parent all information concerning Seller the Company as the Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Preliminary Proxy Statement. Prior The Parent shall promptly respond to any SEC comments on the Preliminary Proxy Statement, with the assistance of the Company, and shall otherwise use commercially reasonable efforts to resolve any such SEC comments relating to the Preliminary Proxy Statement. The Parent shall also take any and all such actions to satisfy the requirements of the Securities Act and the Exchange Act. Notwithstanding the foregoing, prior to filing the Preliminary Proxy Statement or the Definitive Proxy Statement or mailing the Definitive Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer the Parent shall provide Seller Parent the Stockholders’ Representative with an opportunity to review and comment on such document or response.
(b) Buyer As promptly as practicable (and in any event within three (3) Business Days) following the resolution of any SEC comments on the Preliminary Proxy Statement, the Parent shall file and distribute a definitive proxy statement pursuant to Section 14(a) of the Exchange Act (the “Definitive Proxy Statement”) to the holders of the Parent’s Stock and, pursuant thereto, shall, as promptly as practicable, call the Special Meeting and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the Parent Stockholder Approval.
(c) The Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Preliminary Proxy Statement and Definitive Proxy Statement, as applicable, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer the Company shall ensure that the Definitive Proxy Statement will does not, as of the filing date on which it is distributed to the holders of the Proxy Statement (or any amendment or supplement thereto) or Parent’s Stock, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer the Parent shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company for inclusion in the Preliminary Proxy Statement or Definitive Proxy Statement).
. The Company covenants and agrees that the information relating to the Company supplied by the Company for inclusion in the Preliminary Proxy Statement or Definitive Proxy Statement will not, as of the filing date of the Preliminary Proxy Statement or Definitive Proxy Statement (c) Neither Buyer nor or any amendment or supplement thereto), as the Board case may be, or, in the case of Directors the Definitive Proxy Statement, at the time of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(Bd) prepare and file with The Parent, acting through its board of directors, shall include in the SEC the preliminary or definitive Preliminary Proxy Statement and include in the Definitive Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders the Parent’s Stock vote in favor of the issuance adoption of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and approval of the Financing in accordance with NASDAQ Rule 5635transactions set forth therein, and shall otherwise use commercially reasonable efforts to obtain the Parent Stockholder Approval.
Appears in 1 contract
Sources: Merger Agreement (BioScrip, Inc.)
Proxy Statement; Special Meeting. (a) As soon as reasonably practicable after receipt by Buyer shallfrom Target of all financial and other information relating to Target as Buyer may reasonably request for its preparation, in accordance with applicable Law and Buyer’s Organizational Documents: (i) which Target shall deliver as soon as reasonably practicable, Buyer shall prepare and file with the SEC no later than five (5) Business Days following under the date of this AgreementSecurities Act and the Exchange Act, and with all other applicable regulatory bodies a preliminary proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) for the purpose of soliciting proxies from holders of Buyer Common Stock to vote, at a meeting of holders of Buyer Common Stock to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 called and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders held for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders purpose (the “Special Meeting”) ), of Buyer’s shareholders approving the issuance of Buyer Common Stock to Sellers pursuant to the conversion of the Preferred Stock into Buyer Common Stock in accordance with the Certificate of Designations attached as Exhibit F (“Buyer Stockholder Approval”). Sellers and its counsel shall be given an opportunity to review and comment on the preliminary Proxy Statement prior to its filing with the SEC. Buyer shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable best efforts to cause the Proxy Statement to be duly calleddeclared effective by the SEC as promptly as practicable. Buyer shall also take any and all actions required to satisfy the requirements of the Securities Act and the Exchange Act.
(b) As soon as practicable following the approval of the Proxy Statement by the SEC, noticed Buyer shall distribute the Proxy Statement and held shall call the Special Meeting for a date no later than the twelfth thirty (12th30) day days following the Mailing Date for approval of the purpose of obtaining the Buyer Stockholder Approval. The Proxy Statement shall include by the recommendation SEC in accordance with the DGCL and, subject to the other provisions of the Board of Directors of Buyer that stockholders this Agreement, solicit proxies from such holders to vote in favor of the issuance of Buyer Common Stock to Sellers pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made conversion of the Preferred Stock into Buyer Common Stock in accordance with the SEC. Seller Parent shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries Certificate of Designations attached as Buyer may reasonably request in connection with the preparation Exhibit F. Upon receipt of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect theretoBuyer Stockholder Approval, Buyer shall provide Seller Parent with an opportunity convert the Closing Shares into Buyer Common Stock pursuant to review and comment on such document or response.the Certificate of Designations attached as Exhibit F.
(bc) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting .
(d) Until such time as the foregoingPreferred Stock has been converted into Buyer Common Stock, Buyer shall ensure that the Proxy Statement will notnot issue any shares of Buyer Common Stock or preferred stock or other securities convertible into Buyer Common Stock or preferred stock except (i) to Sellers, as or (ii) pursuant to transfers of the filing date shares of the Proxy Statement (or any amendment or supplement thereto) or Buyer Common Stock issued and outstanding as of the date of the Special Meeting, contain any untrue statement of a material fact this Agreement; or omit (iii) pursuant to state a material fact necessary in order to make the statements made, existing warrants and stock options described in the light of the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent for inclusion in the Proxy Statement)SEC Documents.
(c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Primoris Services CORP)
Proxy Statement; Special Meeting. (a) Buyer Seller shall, in accordance with applicable Law Delaware law and BuyerSeller’s Organizational Documents: (i) prepare charter and file with the SEC no later than five (5) Business Days following the bylaws, establish a record date of this Agreementfor, duly call, give notice of, convene and hold a preliminary proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Stockholder Meeting”) to be duly calledas promptly as practicable after the date hereof, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval. The Seller shall use commercially reasonable efforts to solicit from its stockholders proxies for the purposes of obtaining the Stockholder Approval and to secure such Stockholder Approval in accordance with Delaware law and Seller’s charter and bylaws.
(b) As promptly as practicable after the date hereof (and in any event within twenty-three (23) calendar days), Seller shall prepare and file with the SEC a preliminary Proxy Statement with the SEC to be used in connection with the solicitation of proxies at the Stockholder Meeting. Seller and Buyer shall use commercially reasonable efforts to respond to any comments of the SEC and its staff and Seller shall use its commercially reasonable efforts to file a definitive Proxy Statement as soon as practicable following resolution of any SEC comments and mail to its stockholders the Proxy Statement and all other proxy materials for such Stockholder Meeting. If necessary in order to comply with applicable securities laws, after the Proxy Statement shall include have been so mailed, promptly circulate amended, supplemental or supplemented proxy material, and, if required in connection therewith, resolicit proxies. Subject to Section 4.9, to the recommendation extent permitted by applicable law, the board of directors of Seller (the “Board of Directors Directors”) shall recommend that the stockholders of Buyer that stockholders Seller vote in favor of approval of the issuance sale of Buyer Common Stock the Acquired Assets pursuant to this Agreement and the Financing. The transaction contemplated hereby (“Board Recommendation”) and shall include such recommendation in the Proxy Statement Statement; provided, however, that the Board of Directors may fail to make, or withdraw, modify or change such recommendation, and shall not incorporate by reference be required to include such recommendation in the Proxy Statement, if it shall have determined in good faith, after consultation with its outside counsel, that such action is necessary in order for the Board of Directors to act in a manner consistent with its fiduciary duties under Delaware law. Without limiting the generality of the foregoing, unless this Agreement is otherwise terminated in accordance with its terms, the approval of the sale of the Acquired Assets pursuant to this Agreement and the transactions contemplated hereby shall be submitted to Seller’s stockholders at the Stockholder Meeting whether or not any information from any other filing made with the SEC. Seller Parent Acquisition Proposal shall have been publicly proposed or announced or otherwise submitted to Seller.
(c) Buyer shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries Buyer, as Buyer may be reasonably request requested in connection with the preparation and filing with the SEC of the Proxy StatementStatement so as to comply with applicable law. Prior Buyer and its counsel shall be given a reasonable opportunity to filing review and comment on the Proxy Statement before such document (or mailing any amendment or supplement thereto) is filed with the SEC, and Seller shall consider in such document any comments reasonably and timely proposed by Buyer and its counsel. Seller shall (i) as promptly as practicable after receipt thereof, provide Buyer and its counsel with copies of any written comments, and advise Buyer and its counsel of any comments, with respect to the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of received from the SEC with respect theretoor its staff, (ii) provide Buyer shall provide Seller Parent with an and its counsel a reasonable opportunity to review and comment on Seller’s proposed response to such document or response.
(b) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereundercomments, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will not, as of the filing date of the Proxy Statement (or any amendment or supplement theretoiii) or as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent consider for inclusion in the Proxy Statement)Seller’s written response to such comments any input reasonably and timely proposed by Buyer and its counsel.
(c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Sycamore Networks Inc)
Proxy Statement; Special Meeting. (a) Buyer shallAs promptly as reasonably practicable after the execution of this Agreement and Acquiror’s receipt of the Required Financial Statements, subject to the terms of this Section 7.3(a), Acquiror Parent shall prepare (and consult and consider any comments received from Contributor Parties in accordance with applicable Law and Buyer’s Organizational Documents: (igood faith) prepare and file with the SEC no later than five (5) Business Days following the date of this Agreement, a preliminary proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (as amended or supplemented, the “Proxy Statement”) to be mailed sent to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) Acquiror Parent Stockholders in order to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor seek approval of the issuance of Buyer Acquiror Parent Class B Common Stock pursuant to as contemplated by this Agreement (the “Acquiror Parent Stockholder Approval”). Acquiror Parent shall cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the Financingrules and regulations thereunder and other applicable Law. The Proxy Statement Each of the Contributor Parties shall, and shall not incorporate by reference any information from any other filing made cause the Company to, (i) cooperate with the SEC. Seller Acquiror Parent shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior ; (ii) use its commercially reasonable efforts to filing furnish the information reasonably requested by Acquiror Parent for inclusion in the Proxy Statement Statement; and (iii) use its commercially reasonable efforts to provide such other assistance as may be reasonably requested by Acquiror Parent or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC Acquiror Parent’s outside legal counsel in connection with respect thereto, Buyer shall provide Seller Parent with an opportunity to review and comment on such document or response.
(b) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer .
(b) Acquiror Parent shall ensure that (i) use its reasonable best efforts to have the Proxy Statement will not, cleared by the SEC as of the promptly as is reasonably practicable after filing date of and (ii) as promptly as practicable after the Proxy Statement (is cleared under the Exchange Act by the SEC, establish a record date for, duly call, give notice of, convene and hold a meeting of the Acquiror Parent Stockholders, including causing the Proxy Statement to be mailed to the Acquiror Parent Stockholders. Acquiror Parent shall also take any action required to be taken and make any necessary filings under the Securities Act, the Exchange Act or any amendment applicable state securities Laws in connection with the Transactions, this Agreement or supplement theretothe issuance of Acquiror Parent Class B Common Stock and Acquiror Units in the Transactions.
(c) or Each Party agrees, as to itself and its Subsidiaries, to use reasonable best efforts so that none of the information supplied or to be supplied by it for inclusion or incorporation by reference in the Proxy Statement will, at the date of mailing to the Acquiror Parent Stockholders and at the time of the Special Meeting, contain any untrue statement which, at the time and in the light of a the circumstances under which it is made, is false or misleading with respect to any material fact fact, or omit which omits to state a any material fact necessary in order to make the statements madetherein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the Special Meeting or such subject matter which has become false or misleading.
(d) If at any time prior to the Closing, any Party discovers any information relating to Acquiror Parent, Acquiror or the Company, or any of their respective Affiliates, directors or officers that should be set forth in an amendment or supplement to the Proxy Statement so that such documents would not contain any statement which, at the time and in the light of the circumstances under which they were it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading (provided that Buyer shall not be responsible or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the accuracy Special Meeting or completeness such subject matter which has become false or misleading, the Party that discovers such information shall promptly notify the other Party and Acquiror Parent shall promptly cause to be filed with the SEC an appropriate amendment or supplement describing such information and, to the extent required by Law, disseminate such information to the Acquiror Parent Stockholders. Nothing in this Section 7.3(d) shall limit the obligations of any Party under Section 7.3(a), Section 7.3(b), Section 7.3(c) and Section 7.3(e).
(e) Acquiror Parent shall notify the Contributor Parties promptly of the receipt of any correspondence, communications or 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 the Contributor Parties with (i) copies of all correspondence and a description of all material oral discussions 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 Transactions and (ii) copies of all orders of the SEC relating to Seller the Proxy Statement.
(f) Except as otherwise set forth herein, as promptly as practicable, Acquiror Parent furnished shall duly call, give notice of, convene and hold a meeting of the Acquiror Parent Stockholders for the purpose of obtaining the Acquiror Parent Stockholder Approval (the “Special Meeting”). Subject to the terms hereof, such Special Meeting shall in any event be no later than forty-five (45) calendar days after Acquiror Parent mails the Proxy Statement to the Acquiror Parent Stockholders. Acquiror Parent may postpone or adjourn the Special Meeting (i) (A) due to the absence of a quorum or (B) if Acquiror Parent has not received proxies representing a sufficient number of shares of Acquiror Parent Common Stock for the Acquiror Parent Stockholder Approval, whether or not a quorum is present, to solicit additional proxies; or (ii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure that the Acquiror Parent Board has determined in good faith after consultation with outside legal counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by Seller the Acquiror Parent for inclusion Stockholders prior to the Special Meeting.
(g) The Acquiror Parent Board shall recommend to the Acquiror Parent Stockholders that they approve the issuance of the Acquiror Parent Class B Common Stock, together with an equal number of Acquiror Units, as contemplated by this Agreement (the “Acquiror Parent Board Recommendation”) and shall include the Acquiror Parent Board Recommendation in the Proxy Statement).
(c) . Neither Buyer the Acquiror Parent Board nor the Board of Directors of Buyer any committee thereof shall (i) fail to (A) callwithdraw or modify, notice amend or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, qualify in a manner adverse to Seller the Contributor Parties (or propose to withdraw or modify, amend or qualify in a manner adverse to the Contributor Parties publicly) the Acquiror Parent Board Recommendation, or fail to include the Acquiror Parent Board Recommendation in the Proxy Statement (any such action being referred to as a “Change in Recommendation”). Notwithstanding the foregoing, if the Acquiror Parent Board, after consultation with its outside legal counsel, determines in good faith that failure to effect a Change in Recommendation would be reasonably likely to be inconsistent with its fiduciary duties to the Acquiror Parent Stockholders under applicable Law, then the Acquiror Parent Board may effect a Change in Recommendation. Nothing herein shall restrict the making of any disclosure to the Acquiror Parent Stockholders (including factually accurate disclosure regarding the business, financial condition or results of operations of Acquiror Parent and its Subsidiaries) if Acquiror Parent, after consultation with its recommendation outside legal counsel, has determined in good faith that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635such communication is required by applicable Law.
Appears in 1 contract
Sources: Contribution Agreement (Solaris Oilfield Infrastructure, Inc.)
Proxy Statement; Special Meeting. (a) Buyer shall, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Seller shall use commercially reasonable efforts to prepare and file with the SEC no later than five (5) Business Days following the date of this Agreement, a preliminary proxy statement relating (together with a letter to stockholders, notice of meeting and form of proxy) to be used in connection with the solicitation of proxies from for use at the stockholders of Buyer for the Buyer Stockholder Approval and Meeting (A) respond promptly to collectively, including any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (amendment or supplement thereto, the “Proxy Statement”) to be within thirty (30) days of the date hereof. Seller agrees that at the date it is first mailed to Buyer’s the stockholders no later than of Seller or at the later time of the Stockholder Meeting or at the time of any amendment or supplement thereof, (xi) the expiration Proxy Statement will comply in all material respects with the applicable provisions of the ten (10)-day period required by SEC Rule 14a-6 Exchange Act and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) rules and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval regulations thereunder and (ii) cause none of the information supplied by Seller for inclusion or incorporation by reference in the Proxy Statement will contain any untrue statement of a special 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. If, at any time prior to the adoption of this Agreement by Seller’s stockholders, Seller shall become aware of the occurrence of any event or other circumstance relating to it or the transactions contemplated by this Agreement, as to which an amendment or supplement to the Proxy Statement shall be required, Seller shall promptly inform Buyer and prepare and mail to its stockholders such amendment or supplement. Seller and Buyer shall use reasonable best efforts to respond to any comments of the SEC and its staff, and Seller shall file a definitive Proxy Statement as soon as reasonably practicable following resolution of any SEC comments and mail to its stockholders the Proxy Statement and all other proxy materials for such Stockholder Meeting. Each of Seller and Buyer shall promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect. If necessary, in order to comply with applicable securities laws, after the Proxy Statement shall have been so mailed, Seller shall promptly circulate amended, supplemental or supplemented proxy material, and, if required in connection therewith, resolicit proxies. Subject to Section 7.3, the Seller Board shall recommend that the stockholders of Seller vote to authorize the transactions contemplated by this Agreement (the “Seller Board Recommendation”) and shall include such recommendation in the Proxy Statement; provided, however, that the Seller Board may fail to make, or withdraw, modify or change such recommendation, and shall not be required to include such recommendation in the Proxy Statement, if it shall have validly made a Change of Recommendation pursuant to Section 7.3(c).
(b) Seller shall, in accordance with the General Corporation Law of the State of Delaware (the “DGCL”) and Seller’s Governing Documents, establish a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (the “Special Stockholder Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval. The Approval and the other matters described in this Section 7.4(b) as promptly as reasonably practicable following the date upon which the Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate is cleared by reference any information from any other filing made with the SEC. Seller Parent shall use reasonable best efforts to solicit from its stockholders proxies for the purposes of obtaining the Stockholder Approval and to obtain Stockholder Approval in accordance with the DGCL, Seller’s Governing Documents and the Exchange Act.
(c) Buyer shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries Buyer as Buyer may be reasonably request requested in connection with the preparation and filing with the SEC of the Proxy StatementStatement so as to comply with applicable Law. Prior Buyer and its counsel shall be given a reasonable opportunity to filing review and comment on the preliminary and definitive Proxy Statement before such document (or mailing any amendment or supplement thereto) is filed with the SEC, and Seller shall consider in good faith in such document any comments reasonably and timely proposed by B▇▇▇▇ and its counsel. Seller shall (i) as promptly as practicable after receipt thereof, provide Buyer and its counsel with copies of any written comments, and advise Buyer and its counsel of any comments, with respect to the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of received from the SEC with respect theretoor its staff, (ii) provide Buyer shall provide Seller Parent with an and its counsel a reasonable opportunity to review Seller’s proposed response to such comments, and comment on (iii) consider for inclusion in Seller’s written response to such document or response.
(b) comments any input reasonably and timely proposed by Buyer shall comply with all applicable provisions of and rules under the Exchange Act its counsel. Buyer hereby represents, covenants and all applicable provisions agrees that none of the DGCL information to be supplied by or on behalf of Buyer or any Affiliate thereof for inclusion or incorporation by reference in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will notshall, as at the date it is first mailed to the stockholders of Seller or at the time of the filing date Stockholders Meeting or at the time of the Proxy Statement (or any amendment or supplement thereto) or as of the date of the Special Meetingthereof, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements madetherein, in the light of the circumstances under which they were are made, not misleading (provided misleading; provided, however, that no representation or warranty is made by Buyer shall not be responsible for with respect to statements made or incorporated by reference therein to the accuracy or completeness of any extent based on information relating to Seller Parent furnished supplied by Seller Parent for inclusion in the Proxy Statement).
(c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file connection with the SEC the preliminary or definitive Proxy Statement and include in preparation of the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval inclusion or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635incorporation by reference therein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Coherus BioSciences, Inc.)
Proxy Statement; Special Meeting. (a) Buyer shallAs promptly as practical after the execution of this Agreement, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Seller shall prepare and file with the SEC no later than five (5) Business Days following the date Proxy Statement under the Exchange Act, and it then shall use its reasonable best efforts to have the Proxy Statement cleared by the SEC as soon as practical after such filing. The Buyers and Seller shall cooperate with each other in preparing the Proxy Statement, and Seller shall promptly notify BFC of this Agreement, a preliminary proxy statement relating to the solicitation receipt of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by of the SEC with respect to the preliminary proxy statement Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to BFC copies of all correspondence between the Seller or any representative of the Seller and the SEC. Seller shall give BFC and its counsel the opportunity to review the Proxy Statement prior to its being filed with the SEC and shall give BFC and its counsel the opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC. Each of the Buyers and Seller agrees to use all reasonable best efforts, after consultation with the other parties hereto, to respond promptly to any and all such comments of and requests by the SEC and to cause a definitive proxy statement (the “Proxy Statement”) Statement and all required amendments and supplements thereto to be mailed to Buyer’s stockholders no later than the later holders of shares of Seller Common Stock entitled to vote at the Special Meeting.
(xb) Subject to the expiration provisions of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statementSection 4.3, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote Seller in favor of the issuance adoption of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer shall provide Seller Parent with an opportunity to review and comment on such document or response.
(b) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure Merger; provided that the Proxy Statement will notBoard of Directors of Seller may modify or withdraw such recommendation if Seller's Board of Directors believes in good faith, as based on the advice of outside legal counsel, that the filing date of the Proxy Statement (failure to modify or any amendment or supplement thereto) or as of the date of the Special Meeting, contain any untrue statement of a material fact or omit withdraw such recommendation would be inconsistent with its fiduciary duties to state a material fact necessary in order to make the statements made, in the light of the circumstances Seller's stockholders under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent for inclusion in the Proxy Statement)applicable law.
(c) Neither Buyer nor the Board of Directors of Buyer Seller shall (i) fail to (A) call, notice or hold call the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation Meeting of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders to be held as promptly as practicable for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance purpose of Buyer Common Stock pursuant to voting upon this Agreement and the Financing Merger. Subject to Sections 4.3 and 5.3(b), Seller shall, through its Board of Directors, recommend to its stockholders adoption of this Agreement and the Merger and approval of such matters and shall use its best efforts to hold the Special Meeting as soon as practicable after the date hereof. Seller shall use its best efforts to solicit from its stockholders proxies in accordance favor of such matters unless doing so would be inconsistent with NASDAQ Rule 5635the Seller Board of Directors' fiduciary duties to its stockholders under applicable law based on the advice of outside legal counsel.
Appears in 1 contract
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after the execution hereof, in accordance with applicable Law and Buyer’s Organizational Documents: (i) G▇▇▇ shall prepare and file with the SEC no later than five (5) Business Days following the date of this Agreement, a preliminary proxy statement relating to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval Securities and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Exchange Commission (the “Proxy StatementSEC”) to be mailed to Buyer’s stockholders no later than proxy materials for the later purpose of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit soliciting proxies from its stockholders for the Buyer Stockholder Approval and holders of common stock, par value $0.01 per share, of G▇▇▇ (ii) cause “G▇▇▇ Common Stock”), to vote at a special meeting of its the stockholders of G▇▇▇ (the “Special Meeting”) in favor of, among other things, the approval of the Acquisition pursuant to the terms of this Agreement in accordance with the G▇▇▇ Stockholder Approval. Such proxy materials shall be in the form of a proxy statement to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date used for the purpose of obtaining soliciting proxies from holders of G▇▇▇ Common Stock for the Buyer Stockholder Approvalmatters to be acted upon at the Special Meeting as set forth herein (the “Proxy Statement”). The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement Company and GBE shall, and GBE and the Financing. The Proxy Statement Company shall not incorporate by reference any information from any cause each other filing made with the SEC. Seller Parent shall Target Company to, furnish to Buyer G▇▇▇ all information concerning Seller Parent the Target Companies and its Subsidiaries the Properties (to the extent such information with respect to the Properties is in GBE’s or the applicable Target Company’s possession) as Buyer G▇▇▇ may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer The Company and its counsel shall provide Seller Parent with be given an opportunity to review and comment on such document or responsethe Proxy Statement prior to its filing with the SEC. G▇▇▇, with the assistance of the Company, shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable efforts to cause the Proxy Statement to be approved for distribution by the SEC as promptly as practicable.
(b) Buyer As soon as practicable following the approval for distribution of the Proxy Statement by the SEC, G▇▇▇ shall distribute the Proxy Statement to the holders of G▇▇▇ Common Stock and, pursuant thereto, shall call the Special Meeting for a date no later than 30 days after the mailing of the Proxy Statement to the holders of G▇▇▇ Common Stock in accordance with the Delaware General Corporation Law (the “DGCL”) and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the approval of the Acquisition pursuant to the terms of this Agreement and the other matters presented for approval or adoption at the Special Meeting.
(c) G▇▇▇ shall comply in all material respects with all applicable provisions of and rules under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and all applicable provisions of the DGCL and any applicable stock exchange rules in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer G▇▇▇ shall ensure that the Proxy Statement will not, as of the filing date of the Proxy Statement (or any amendment or supplement thereto) or does not, as of the date on which it is first distributed to the holders of G▇▇▇ Common Stock, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer G▇▇▇ shall not be responsible for the accuracy or completeness of any information relating to Seller Parent GBE or any Target Company or any other information furnished by Seller Parent GBE or any Target Company for inclusion in the Proxy Statement). GBE and the Company jointly and severally represent and warrant that the information relating to GBE and the Target Companies supplied by GBE or any Target Company for inclusion in the Proxy Statement will not as of the date on which the Proxy Statement (or any amendment or supplement thereto) is first distributed to the holders of G▇▇▇ Common Stock or at the time of the Special Meeting contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(cd) Neither Buyer nor Without limiting the Board right of Directors the board of Buyer directors of G▇▇▇ to take a contrary position if required pursuant to its fiduciary duties under Delaware law, G▇▇▇, acting through its board of directors, and based on the recommendation of the special committee of its board of directors, shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders G▇▇▇ Common Stock vote in favor of the issuance of Buyer Common Stock, all as required and Acquisition pursuant to the terms of this Agreement, (C) solicit proxies from its stockholders for and shall otherwise use reasonable best efforts to obtain the Buyer G▇▇▇ Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635Approval.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Grubb & Ellis Realty Advisors, Inc.)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Oakmont from Parent and the Company of all financial and other information relating to Parent and the Company as Oakmont may reasonably request, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Oakmont shall prepare and file with the SEC no later than five (5) Business Days following SEC, and with all other applicable regulatory bodies, proxy materials for the date purpose of this Agreement, obtaining the Oakmont Stockholder Approval. Such proxy materials shall be in the form of a preliminary proxy statement relating to be used for the purpose of soliciting such proxies from stockholders of Oakmont and also for the purpose of issuing Oakmont Stock to the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Company Stockholders (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval). The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement Parent and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Company shall furnish to Buyer Oakmont all information concerning Seller Parent and the Company as Oakmont may reasonably request. Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer counsel shall provide Seller Parent with be given an opportunity to review and comment on such document the Proxy Statement prior to its filing with the SEC. 5.1.(b) Without limitation of the generality of the foregoing, Parent shall provide Oakmont with audited financial statements of the Company consisting of balance sheets of the Company as of December 31, 2004, 2005, and 2006, and the related statements of income and cash flows for the years then ended (including the notes contained therein or response.
annexed thereto) (bthe “Audited Company Financials”), reported on, and accompanied by, signed, unqualified opinions of independent auditors reasonably acceptable to Oakmont. The Audited Company Financials (including all notes and schedules contained therein or annexed thereto) Buyer shall comply (i) be true, complete and accurate, (ii) have been prepared in accordance with all applicable provisions GAAP applied on a consistent basis, (iii) have been prepared in accordance with the books and records of the Company, (iv) fairly present, in accordance with GAAP, the assets, liabilities and rules under financial position, the results of operations and cash flows of the Company as of the dates and for the years and periods indicated, (v) be in compliance as to form with the Exchange Act and all applicable provisions the published rules and regulations of the DGCL SEC as required to be included in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will notand the Transaction Form 8-K, as of the filing date of the Proxy Statement and (or any amendment or supplement theretovi) or as of the date of the Special Meeting, contain any untrue statement of a material fact or omit otherwise be reasonably acceptable to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent Oakmont for inclusion in the Proxy Statement).
5.1. (c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) callOakmont, notice or hold the Special Meeting, (B) prepare and file with the assistance of Parent, shall promptly respond to any SEC comments on the preliminary or definitive Proxy Statement and include in shall otherwise use reasonable best efforts to cause the Proxy Statement to be declared effective as promptly as practicable. Oakmont shall also take any and all such actions to satisfy the recommendation requirements of the Board Securities Act and the Exchange Act. Prior to the Closing Date, Oakmont shall use its reasonable best efforts to cause the shares of Directors Oakmont Stock to be issued to Parent hereunder to be registered or qualified under “blue sky” Laws of Buyer that stockholders vote in favor each of the issuance states and territories of Buyer Common Stockthe United States in which the parties deem necessary, all as required and pursuant to this Agreement, take any other such actions which may be necessary to enable Oakmont Stock to be issued in each such jurisdiction.
5.1. (Cd) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement Parent and the Financing Company shall cause its officers, executives, directors, employees and personnel to support the marketing of any securities by Oakmont (including, without limitation, the participation by such individuals in accordance with NASDAQ Rule 5635“road shows”) to the extent reasonably requested by Oakmont.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Oakmont Acquisition Corp.)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after the date hereof, GSME shall prepare proxy materials for the purpose of soliciting proxies from holders of GSME Shares to vote, at a meeting of holders of GSME Shares to be called and held for such purpose (the “Special Meeting”), in favor of (i) the approval of the Merger and the transactions contemplated by this Agreement (the “GSME Shareholder Approval”), (ii) the change of the name of GSME to “Plastec Technologies, Ltd.”, (iii) an increase in the number of authorized ordinary GSME Shares to one hundred million (100,000,000), (iv) an adjournment of the Special Meeting if, at the time it is called to order, there are insufficient votes to obtain GSME Shareholder Approval or the holders of eighty-one percent (81%) or more in interest of the GSME Shares issued in GSME’s IPO and outstanding immediately before the Closing shall have exercised their rights to convert their shares into a pro rata share of the Trust Fund in accordance with applicable Law GSME’s Charter Documents and Buyer’s Organizational Documents: (iv) prepare and file with such other matters necessary for the SEC no later than five (5) Business Days following consummation of the date transactions contemplated hereby. Such proxy materials shall be in the form of this Agreement, a preliminary proxy statement relating to be used for the solicitation purpose of soliciting such proxies from the stockholders holders of Buyer GSME Shares for the Buyer Stockholder Approval and (A) respond promptly matters to any comments made by be acted upon at the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Special Meeting (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval). The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent Plastec shall furnish to Buyer GSME all information concerning Seller Parent and its Subsidiaries Plastec as Buyer GSME may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer Plastec and its counsel shall provide Seller Parent with an be given a reasonable opportunity to review and comment on such document proxy materials prior to their distribution to GSME’s shareholders and GSME will not distribute any documents containing information that Plastec has reasonably determined is incorrect or responsemisleading and notified GSME in writing thereof.
(b) Buyer As soon as practicable following the preparation of the definitive Proxy Statement, GSME shall comply distribute the Proxy Statement to the holders of GSME Shares and, pursuant thereto, shall call the Special Meeting in accordance with the Companies Law (Revised) of the Cayman Islands (the “Companies Law”) and GSME’s Charter Documents and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the approval of the Merger and the other transactions contemplated by this Agreement and the other matters presented for approval or adoption at the Special Meeting.
(c) GSME shall use its best efforts to ensure that the Proxy Statement (i) includes the information GSME believes would have been required to be provided to shareholders had GSME not been a “foreign private issuer” (as defined in the Exchange Act) but still had a class of equity securities registered under Section 12 of the Exchange Act and (ii) complies with all applicable provisions of the Companies Law and rules under the Exchange Act and all applicable provisions of the DGCL GSME’s Charter Documents in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer GSME shall ensure that the Proxy Statement will does not, as of the filing date of on which the Proxy Statement (or any amendment or supplement thereto) or is first distributed to the shareholders of GSME, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer GSME shall not be responsible for the accuracy or completeness of any information relating to Seller Parent Plastec or any other information furnished by Seller Parent Plastec for inclusion in the Proxy Statement).
(c) Neither Buyer nor . Plastec represents and warrants that so long as GSME is in compliance with the Board terms of Directors this Section 6.1, the information relating to Plastec supplied by Plastec for inclusion in the Proxy Statement will not, as of Buyer shall (i) fail the date on which the Proxy Statement is first distributed to (A) call, notice the shareholders of GSME or hold at the time of the Special Meeting, contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(Bd) prepare and file with the SEC the preliminary or definitive Proxy Statement and GSME, acting through its Board of Directors, shall include in the Proxy Statement the unanimous recommendation of the its Board of Directors that the holders of Buyer that stockholders GSME Shares vote in favor of the issuance approval of Buyer Common Stock, all as required and pursuant to the transactions contemplated by this Agreement, and shall otherwise use reasonable best efforts to obtain the GSME Shareholder Approval.
(Ce) solicit proxies from its stockholders Plastec and each of the Plastec Shareholders shall cooperate with GSME and use commercially reasonable efforts to provide all information reasonably requested by GSME in connection with any application or other filing made to secure listing for trading or quotation of GSME’s securities on the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve Nasdaq Stock Market following the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635Effective Time.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (GSME Acquisition Partners I)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by the Purchaser from the Company of all financial and other information relating to the Company as the Purchaser may reasonably request for its preparation, in accordance with applicable Law and Buyer’s Organizational Documents: (i) the Purchaser shall prepare and file with the SEC no later than five Securities and Exchange Commission (5“Commission”) Business Days following under the date Exchange Act proxy materials for the purpose of soliciting proxies from holders of Purchaser Stock to vote in favor of (i) the approval of the transactions contemplated by this AgreementAgreement (the “Purchaser Stockholder Approval”), (ii) the change of the name of the Purchaser to a preliminary name selected by the Purchaser (the “Name Change Amendment”), (iii) an amendment to remove the preamble and sections A through D, inclusive, of Article Sixth from the Purchaser’s Certificate of Incorporation from and after the Closing and to redesignate section E of Article Sixth as Article Sixth, and (v) the adoption of an Incentive Stock Option Plan or other equity incentive plan (the “Purchaser Plan”) at a meeting of holders of Purchaser Stock to be called and held for such purpose (the “Special Meeting”). Such proxy materials shall be in the form of a proxy statement relating to be used for the solicitation purpose of soliciting such proxies from the stockholders holders of Buyer Purchaser Stock for the Buyer Stockholder Approval and (A) respond promptly matters to any comments made by be acted upon at the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Special Meeting (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval). The Proxy Statement Company shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant use its reasonable efforts to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall furnish to Buyer the Purchaser all information concerning Seller Parent and its Subsidiaries the Company as Buyer the Purchaser may reasonably request in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer The Company and its counsel shall provide Seller Parent with be given an opportunity to review and comment on such document proxy materials, including amendments thereto, prior to their filing with the Commission and the Purchaser will not file any documents containing information that the Company has reasonably determined is incorrect or responsemisleading and notified the Purchaser in writing thereof. The Purchaser, with the assistance of the Company, shall promptly respond to any Commission comments on such proxy materials and shall otherwise use reasonable best efforts to cause the definitive Proxy Statement to be approved by the Commission for distribution to the Purchaser’s stockholders as promptly as practicable. The Purchaser shall also take any and all such actions to satisfy the requirements of the Securities Act and the Exchange Act. Prior to the Closing Date, the Purchaser shall use its reasonable best efforts to cause the shares of Purchaser Stock to be issued pursuant to this Agreement to be registered or qualified under all applicable Blue Sky Laws of each of the states and territories of the United States in which it is believed, based on information furnished by the Company, holders of the Company Stock reside and to take any other such actions that may be necessary to enable the Purchaser Stock to be issued pursuant to this Agreement in each such jurisdiction.
(b) Buyer As soon as practicable following the approval by the Commission of the distribution of the definitive Proxy Statement, the Purchaser shall distribute the Proxy Statement to the holders of Purchaser Stock and, pursuant thereto, shall call the Special Meeting in accordance with the DGCL and in no event more than 60 days following approval by the Commission of the Proxy Statement and, subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the approval of the transactions contemplated by this Agreement and the other matters presented for approval or adoption at the Special Meeting.
(c) The Purchaser shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer the Purchaser shall ensure that the Proxy Statement will does not, as of the filing date of on which the Proxy Statement (or any amendment or supplement thereto) or is first distributed to the stockholders of the Purchaser, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer the Purchaser shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company for inclusion in the Proxy Statement).
(c) Neither Buyer nor . The Company represents and warrants that the Board information relating to the Company supplied by the Company for inclusion in the Proxy Statement will not, as of Directors the date on which the Proxy Statement is first distributed to the stockholders of Buyer shall (i) fail to (A) call, notice the Purchaser or hold at the time of the Special Meeting, contain any statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary in order to make the statement therein not false or misleading.
(Bd) prepare and file with the SEC the preliminary or definitive Proxy Statement and The Purchaser, acting through its board of directors, shall include in the Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders Purchaser Stock vote in favor of the issuance approval of Buyer Common Stock, all as required and pursuant to the transactions contemplated by this Agreement, and shall otherwise use reasonable best efforts to obtain the Purchaser Stockholder Approval.
(Ce) solicit proxies from The Company also shall cooperate with the Purchaser and use its stockholders reasonable efforts to provide all information reasonably requested by the Purchaser in connection with any application or other filing made to maintain or secure listing for trading or quotation of the Buyer Stockholder Approval Purchaser’s securities on the American Stock Exchange, Nasdaq or the Over-the-Counter Bulletin Board (ii“OTC BB”) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve following the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Global Logistics Acquisition CORP)
Proxy Statement; Special Meeting. (a) Buyer shallAs promptly as practicable after the execution of this Agreement and GSCAC’s receipt from CEH of any information regarding the Project Companies that is required to be included in the Proxy Statement, in accordance with applicable Law and Buyer’s Organizational Documents: (i) GSCAC will prepare and file a preliminary Proxy Statement with the SEC; provided that GSCAC shall furnish a draft of such preliminary Proxy Statement to CEH and give CEH and its legal counsel a reasonable opportunity to review such draft prior to filing the preliminary Proxy Statement with the SEC no later than five (5) Business Days following and shall accept all reasonable additions, deletions or changes suggested by CEH in connection therewith. GSCAC shall promptly notify CEH of the date receipt of this Agreement, a preliminary proxy statement relating any comments of the SEC staff with respect to the solicitation Proxy Statement and of proxies from any requests by the stockholders SEC for any amendment or supplement thereto or for additional information and shall provide to CEH as promptly as reasonably practicable, copies of Buyer for the Buyer Stockholder Approval all written correspondence between GSCAC or any representative of GSCAC and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if . If comments are received from the SEC advises Buyer staff with respect to the Proxy Statement, GSCAC shall respond as promptly as reasonably practicable after its receipt from CEH of any information regarding the Project Companies that it is required to address such comments and GSCAC will use its reasonable best efforts to mail the Proxy Statement to its stockholders as soon as reasonably practicable following its approval by the SEC. GSCAC shall provide CEH and its legal counsel with a reasonable opportunity to review the preliminary proxy statement, the day following the SEC staff’s clearance any amendment or supplement to each of the preliminary proxy statement and the definitive Proxy Statement prior to filing with the SEC and shall accept all reasonable additions, deletions or changes suggested by CEH in connection therewith. As promptly as practicable after the execution of this Agreement and GSCAC’s receipt from CEH of any information regarding the Project Companies that is required to be included, GSCAC will prepare and file any other filings required under the Securities Act or the Exchange Act or any other Federal, foreign or Blue Sky Laws relating to the Transaction or any regulations of any exchange on which the common stock, par value $0.001 per share of GSCAC is listed for trading (collectively, the “Mailing DateOther Filings”) ). GSCAC will notify CEH promptly of any request by the SEC or its staff or any other governmental officials for amendments or supplements to any Other Filing or for other additional information and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting will supply CEH with copies of all written correspondence between GSCAC or any of its stockholders (representatives, on the “Special Meeting”) one hand, and such government officials, on the other hand, with respect to any Other Filing. GSCAC agrees that the Proxy Statement and the Other Filings will comply in all material respects with all applicable Laws and the rules and regulations promulgated thereunder. Whenever any event occurs which is required to be duly calledset forth in an amendment or supplement to the Proxy Statement or any Other Filing, noticed CEH or GSCAC as the case may be, will promptly inform the other Party of such occurrence and held no later than cooperate in filing with the twelfth (12th) day following SEC or any other government officials, and/or mailing to GSCAC Stockholders, such amendment or supplement. The Proxy Statement will be sent to the Mailing Date GSCAC Stockholders for the purpose of obtaining soliciting proxies from GSCAC Stockholders to vote in favor of (i) the Buyer Stockholder Approval. The Initial Business Combination contemplated by this Agreement, (ii) the issuance and sale of the GSCAC Class B Common Stock and the GSCAC Class A Common Stock (including GSCAC Class A Common Stock into which the Holdco Class B Common Units may be exchanged); (iii) the adoption of the GSCAC Plan; and (iv) the amendments to the Certificate of Incorporation of GSCAC as required so that the Certification of Incorporation of GSCAC can be amended and restated in substantially the form set forth on Exhibit D (the matters described in clauses (i) through (iv), the “Voting Matters”).
(b) As soon as practicable after mailing the Proxy Statement to the GSCAC Stockholders, GSCAC shall include the recommendation call, convene and hold a meeting of the Board of Directors of Buyer that stockholders GSCAC Stockholders (the “GSCAC Stockholders’ Meeting”) and solicit proxies from such holders to vote in favor of the issuance approval of Buyer the Transaction and the other Voting Matters. GSCAC’s obligation to call, convene and hold such meeting shall not be affected by any Change in Recommendation by the GSCAC Board unless this Agreement is terminated by CEH pursuant to Article IX. Notwithstanding anything to the contrary contained in this Agreement, GSCAC shall adjourn or postpone the GSCAC Stockholders’ Meeting to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the GSCAC Stockholders or, if as of the time for which the GSCAC Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of GSCAC Common Stock pursuant represented (either in person or by proxy) to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made constitute a quorum necessary to conduct business at such meeting.
(c) CEH agrees to use reasonable best efforts to provide GSCAC with the SEC. Seller Parent shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries the Project Companies as Buyer may is reasonably request requested by GSCAC for the information concerning the Project Companies in connection with the preparation of the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer shall provide Seller Parent with an opportunity to review and comment on such document or response.
(b) Buyer shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions or requirements of the DGCL AMEX in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special MeetingGSCAC Stockholders’ Meeting or as may be reasonably required to respond to any comment of the SEC. Without limiting the foregoing, Buyer GSCAC shall ensure that the Proxy Statement will does not, as of the filing date of on which it is distributed to the Proxy Statement (or any amendment or supplement thereto) or GSCAC Stockholders, and as of the date of the Special GSCAC Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer GSCAC shall not be responsible for the accuracy or completeness of ensuring that any information relating to Seller Parent furnished by Seller Parent CEH in writing for inclusion in the Proxy Statement does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading). With respect to the information furnished by CEH in writing with respect to the Project Companies for inclusion in the Proxy Statement, CEH shall ensure that the Proxy Statement does not, as of the date on which it is distributed to the GSCAC Stockholders, and as of the date of the GSCAC Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading (provided that CEH shall not be responsible for ensuring that any information furnished by a GSCAC Party in writing for inclusion in the Proxy Statement does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading).
(cd) Neither Buyer nor Subject to Section 6.13 but without limiting Section 6.09(b), the GSCAC Board shall recommend that the GSCAC Stockholders vote in favor of Directors approval of Buyer the Transactions and the other Voting Matters, and GSCAC, acting through its board of directors, shall include in the Proxy Statement such recommendation, and shall otherwise use all reasonable best efforts to obtain the Requisite Shareholder Approval.
(ie) fail CEH agrees to (A) calluse reasonable best efforts to obtain a “comfort letter” in form and substance reasonably satisfactory to GSCAC from UHY M▇▇▇, notice or hold Frankfort S▇▇▇▇ & L▇▇▇, independent public accountants to CEH, with respect to the Special Meeting, (B) prepare and file with the SEC the financial statements of any Project Company included in any preliminary or definitive Proxy Statement and include in filed with the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635SEC.
Appears in 1 contract
Proxy Statement; Special Meeting. (a) Buyer shallAs promptly as practicable after the date hereof (and in any event within 15 Business Days), in accordance with applicable Law and Buyer’s Organizational Documents: (i) Seller shall prepare and file with the SEC no later than five (5) Business Days following the date of this Agreement, a preliminary proxy statement relating to be used in connection with the solicitation of proxies from for use at the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Shareholder Meeting (the “Proxy Statement”) ). Seller and Buyer shall use commercially reasonable efforts to be mailed respond to Buyer’s stockholders no later than the later of (x) the expiration any comments of the ten (10)-day period required SEC and its staff, and Seller shall file a definitive Proxy Statement as soon as reasonably practicable following resolution of any SEC comments and mail to its shareholders the Proxy Statement and all other proxy materials for such Shareholder Meeting. Each of Seller and Buyer shall promptly correct any information provided by SEC Rule 14a-6 it for use in the Proxy Statement if and (y) if to the SEC advises Buyer extent that it will review shall have become false or misleading in any material respect. If necessary in order to comply with applicable securities laws, after the preliminary Proxy Statement shall have been so mailed, Seller shall promptly circulate amended, supplemental or supplemented proxy statementmaterial, and, if required in connection therewith, resolicit proxies. Subject to Section 6.02, the day following Seller Board shall recommend that the SEC staffstockholders of Seller vote to authorize the Transactions (“Seller Board Recommendation”) and shall include such recommendation in the Proxy Statement; provided, however, that the Seller Board may fail to make, or withdraw, modify or change such recommendation, and shall not be required to include such recommendation in the Proxy Statement, if it shall have made a Change of Recommendation.
(b) Seller shall, in accordance with the MBCA and Seller’s clearance Organizational Documents, establish a record date for, duly call, give notice of, convene and hold a meeting of the preliminary proxy statement its shareholders (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Shareholder Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Shareholder Approval and the other matters described in this Section 6.15(b) as promptly as reasonably practicable following the date upon which the Proxy Statement is cleared by the SEC (with the record date and meeting date to be set by the Seller Board after consultation with ▇▇▇▇▇). Seller shall use commercially reasonable efforts to solicit from its shareholders proxies for the purposes of obtaining the Shareholder Approval and to obtain Shareholder Approval in accordance with the MBCA, Seller’s Organizational Documents, the Exchange Act and the rules of Nasdaq. Seller shall, upon the reasonable request of ▇▇▇▇▇, advise Buyer Stockholder at least on a daily basis on each of the last seven Business Days prior to the date of the Shareholder Meeting as to the aggregate tally of proxies received by Seller with respect to the Shareholder Approval. The Proxy Statement shall include Without the recommendation prior written consent of Buyer, the Board adoption of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement Transactions, a non-binding vote on executive compensation, and approval of a name change of Seller (as contemplated under Section 6.16) shall not incorporate be the only matters (other than procedural matters) that Seller shall propose to be acted on by reference any information from any other filing made with the SEC. shareholders of Seller Parent at the Shareholder Meeting.
(c) Buyer shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries Buyer as Buyer may be reasonably request requested in connection with the preparation and filing with the SEC of the Proxy StatementStatement so as to comply with applicable Law. Prior Buyer and its counsel shall be given a reasonable opportunity to filing review and comment on the preliminary and definitive Proxy Statement before such document (or mailing any amendment or supplement thereto) is filed with the SEC, and Seller shall consider in such document any comments reasonably and timely proposed by ▇▇▇▇▇ and its counsel. Seller shall (i) as promptly as practicable after receipt thereof, provide Buyer and its counsel with copies of any written comments, and advise Buyer and its counsel of any comments, with respect to the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of received from the SEC with respect theretoor its staff, (ii) provide Buyer shall provide Seller Parent with an and its counsel a reasonable opportunity to review Seller’s proposed response to such comments, and comment on (iii) consider for inclusion in Seller’s written response to such document or response.
(b) comments any input reasonably and timely proposed by Buyer shall comply with all applicable provisions of and rules under the Exchange Act its counsel. Buyer hereby represents, covenants and all applicable provisions agrees that none of the DGCL information to be supplied by or on behalf of Buyer or any Affiliate thereof for inclusion or incorporation by reference in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will notshall, as at the date it is first mailed to the shareholders of Seller or at the time of the filing date Shareholders Meeting or at the time of the Proxy Statement (or any amendment or supplement thereto) or as of the date of the Special Meetingthereof, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements madetherein, in the light of the circumstances under which they were are made, not misleading (provided misleading; provided, however, that no representation or warranty is made by Buyer shall not be responsible for with respect to statements made or incorporated by reference therein to the accuracy or completeness of any extent based on information relating to Seller Parent furnished supplied by Seller Parent for inclusion in the Proxy Statement).
(c) Neither Buyer nor the Board of Directors of Buyer shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file connection with the SEC the preliminary or definitive Proxy Statement and include in preparation of the Proxy Statement the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval inclusion or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635incorporation by reference therein.
Appears in 1 contract
Proxy Statement; Special Meeting. (a) Buyer shallAs promptly as reasonably practicable after the execution and delivery of this Agreement by the parties hereto, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Parent shall prepare and file with the SEC no later than five (5) Business Days following under the date Exchange Act, proxy materials for the purpose of this Agreement, a preliminary proxy statement relating to the solicitation of soliciting proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Parent (the “Proxy Statement”"Parent Stockholders") to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance approval of Buyer Common Stock pursuant to this Agreement and the Financingapproval of the transactions contemplated by this Agreement (collectively, the "Stockholder Approval Matters") at a special meeting of Parent Stockholders to be called and held for such purpose (and for such other purposes as may be necessary to effect the transactions contemplated herein) (the "Special Meeting"). The Such proxy materials shall be in the form of a proxy statement to be used for the purpose of soliciting such proxies from Parent Stockholders (such proxy statement, together with any accompanying letter to stockholders, notice of meeting and form of proxy, shall be referred to herein as the "Proxy Statement Statement"). Buyer shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall furnish make reasonable efforts to Buyer all information concerning Seller Parent and its Subsidiaries as Buyer may reasonably request respond to reasonable requests in connection with the preparation of the Proxy Statement and shall promptly upon the request of Seller, provide any information regarding Buyer which is required to be included in the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer and its counsel shall provide Seller Parent with be given an opportunity to review and comment on such document the Proxy Statement prior to its filing with the SEC. Parent shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable efforts to resolve as promptly as reasonably practicable all SEC comments thereon. Buyer shall use its commercially reasonable efforts to promptly respond to any reasonable requests from Seller to assist Seller in the preparation of, and responding to SEC comments on, information regarding the Buyer included or responseto be included in the Proxy Statement.
(b) Buyer Promptly following the resolution of all SEC comments on the Proxy Statement, Parent shall mail the Proxy Statement to Parent stockholders and, pursuant thereto, shall call the Special Meeting in accordance with Chapter 156B of the Massachusetts General Laws (such meeting to be held within forty five (45) days of the date the Proxy Statement is first mailed to Parent Stockholders) and solicit proxies from Parent Stockholders to vote in favor of the Stockholder Approval Matters at the Special Meeting.
(c) Parent shall comply with all applicable provisions of and rules and regulations under the Exchange Act and all applicable provisions of Chapter 156B of the DGCL Massachusetts General Laws in the preparation, filing and distribution of the Proxy Statement, the 50 solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer Parent shall ensure that the Proxy Statement will not, as of the filing date of the Proxy Statement (or any amendment or supplement thereto) or does not, as of the date on which it is mailed to Parent Stockholders, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made, in the light of the circumstances under in which they were made, not false or misleading (provided that Buyer the Parent shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Buyer or any other information furnished by Seller Parent the Buyer in writing for inclusion in the Proxy Statement).
(cd) Neither Buyer nor shall promptly inform Parent if any of the information supplied by Buyer in writing for inclusion in the Proxy Statement to be mailed to the stockholders of the Parent in connection with the Special Meeting will, on the date the Proxy Statement (or any amendment or supplement thereto) is first mailed to Parent Stockholders or at the time of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made, in light of the circumstances in which they were made, not false or misleading.
(e) Parent shall consult with Buyer regarding the date of the Special Meeting and shall not postpone or adjourn (other than for the absence of a quorum) the Special Meeting without the consent of Buyer. Parent shall use its commercially reasonable efforts to solicit from its stockholders proxies in favor of the approval of the Stockholder Approval Matters and shall take all other commercially reasonable action necessary or advisable to secure the vote or consent of stockholders required to effect the transactions contemplated by this Agreement. Parent's obligation to call, give notice of, convene and hold the Special Meeting in accordance with this Section 6.7 shall not be limited to or otherwise affected by the commencement, disclosure, announcement or submission to Seller of any Acquisition Proposal or any change in the Board of Directors recommendation regarding any of the Stockholder Approval Matters, except in the case of a Superior Offer or for Parent's Board of Directors to comply with its fiduciary duties.
(f) Subject to Section 6.7(g): (i) the Board of Directors of Buyer Parent shall (i) fail to (A) call, notice or hold recommend that Parent's stockholders vote in favor of and approve the Stockholder Approval Matters at the Special Meeting, ; (Bii) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement shall include a statement to the effect that the Board of Directors of Parent has recommended that Parent's stockholders vote in favor of and approve the Stockholder Approval Matters at the Special Meeting; and (iii) neither the Board of Directors of Parent nor any committee thereof shall withdraw, amend or modify, or propose or resolve to withdraw, amend or modify in a manner adverse to Buyer, the recommendation of the Board of Directors of Buyer Parent that Parent's stockholders vote in favor of and approve the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval Matters.
(g) Nothing in this Agreement shall prevent the Board of Directors of Parent from withholding, withdrawing, amending or (ii) modifying its recommendation in favor of the Stockholder Approval Matters if the Board of Directors of Parent reasonably concludes in good faith, after consultation with its outside counsel, that the failure to withhold, withdraw, amend or modify such recommendation would violate its fiduciary obligations under applicable law or qualify, or propose publicly in the event of a Superior Offer; provided that Parent shall have delivered to withdraw, modify or qualify, in Buyer a manner adverse prior written notice advising Buyer that it intends to Seller Parent, take such action and describing its recommendation that Buyer’s stockholders approve reasons for taking such action (such notice to be delivered not less than three (3) business days prior to the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635time such action is taken).
Appears in 1 contract
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Parent from the Company of all financial and other information relating to the Company as is necessary for its preparation (including the Updated Financial Statements), in accordance with applicable Law and Buyer’s Organizational Documents: (i) Parent shall prepare and file with the SEC no later than five (5) Business Days following under the date of this AgreementExchange Act, a preliminary proxy statement relating to and with all other applicable regulatory bodies, the solicitation of proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement”) /Prospectus to be mailed to Buyer’s stockholders no later than the later of (x) the expiration of the ten (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting of its stockholders (the “Special Meeting”) to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date used for the purpose of obtaining soliciting proxies from holders of Parent Common Stock (the Buyer Stockholder Approval. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders “Parent Stockholders”) to vote in favor of (A) the adoption of this Agreement and the approval of the Mergers (the “Merger Proposal”), (B) the election to the board of directors of Parent of the individuals identified on Schedule 5.2 of the Parent Schedule for the class of director set forth opposite the name of each such individual (the “Director Proposal”); (C) the approval of certain changes to Parent’s Charter Documents, to be effective from and after the Closing, including the change of the name of Parent to a name to be mutually agreed by the parties hereto, an increase in the number of authorized shares of Parent Common Stock to a number to be mutually agreed by the parties hereto (which shall not be less than 1,000,000,000) and other mutually agreed upon changes to Parent’s capitalization structure and amendments to Article Sixth so that the existence of Parent shall be perpetual and to remove all SPAC-related provisions that will no longer be applicable to Parent following the Closing and such other amendments proposed by the Company that are reasonably acceptable to Parent (the “Charter Amendments Proposals”), (D) the approval and adoption of the Parent Plan, (E) approval of the issuance of Buyer more than 20% of the issued and outstanding shares of the Parent Common Stock pursuant to this Agreement and the FinancingPIPE Investment, (F) the adjournment of the stockholder meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the transactions contemplated hereby for any reason, and (G) approval of any other proposals reasonably agreed by Parent and the Company to be necessary or appropriate in connection with the transactions contemplated hereby (together with the Merger Proposal, Director Proposal, Charter Amendments Proposals and Plan Proposal, the “Stockholder Matters”) at a meeting of Parent Stockholders to be called and held for such purpose (the “Special Meeting”), and Parent shall prepare and file with the SEC the Form S-4, in which the Proxy Statement/Prospectus will be included. Without the prior written consent of the Company, the Stockholder Matters shall be the only matters (other than procedural matters) which Parent shall propose to be acted on by the Parent Stockholders at the Special Meeting. The Proxy Statement Parent Plan shall not incorporate by reference any information from any provide that 10% of the total number of shares of Parent Common Stock to be issued and outstanding after the Closing (or such other filing made with number of shares as Parent and the SECCompany may otherwise agree following the date hereof) shall be reserved for issuance pursuant to the Parent Plan, plus an “evergreen” feature as to be mutually agreed upon between the Company and Parent. Seller Parent The Company shall furnish to Buyer Parent all information concerning Seller Parent and its Subsidiaries the Company as Buyer may reasonably request is necessary in connection with the preparation of the Proxy Statement/Prospectus and shall otherwise assist and cooperate with Parent as reasonably requested by Parent. Prior The Company and its counsel shall be given a reasonable opportunity to review, comment on and approve in writing (which approval may be by e-mail) the preliminary Proxy Statement/Prospectus prior to its filing with the SEC and any other amendments or documents filed with the SEC, and Parent shall not file any documents with the SEC referencing, relating to or containing any Company information without the prior written consent (including by e-mail) of the Company, such consent not to be unreasonably withheld, conditioned or delayed. Each of Parent and the Company shall use its commercially reasonable efforts to (w) cause the Form S-4, when filed with the SEC, to comply in all material respects with all legal requirements applicable thereto, (x) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement or mailing Statement/Prospectus, (y) cause the Proxy Statement Form S-4 to be declared effective as promptly as practicable and (or any amendment or supplement theretoz) or responding keep the Form S-4 effective as long as is necessary to any comments consummate the Mergers. Parent shall also take all actions required to satisfy the requirements of the SEC Securities Act and the Exchange Act. The Company and Parent shall each pay fifty percent (50%) of (1) the filing fees associated with respect theretothe Form S-4, Buyer shall provide Seller Parent with an opportunity (2) all compensation, fees and expenses due and payable to review ICR, LLC under that certain Consulting Agreement, dated as of February 5, 2021, by and comment on such document or responsebetween ICR, LLC and the Company, and (3) all compensation, fees and expenses due and payable to Gasthalter & Co. LP under that certain letter agreement, dated as of February 5, 2021, by and between Gasthalter & Co. LP and the Company.
(b) Buyer As soon as reasonably practicable following the approval of the Proxy Statement/Prospectus and the declaration of the effectiveness of the Form S-4 by the SEC (the “SEC Approval Date”) (and in any event, within seven Business Days after the SEC Approval Date), Parent shall (i) distribute the Proxy Statement/Prospectus to the Parent Stockholders, (ii) having, prior to the SEC Approval Date, established the record date therefor, duly call, give notice of, convene and hold the Special Meeting in accordance with the DGCL and, subject to the other provisions of this Agreement, on a date no later than forty-five (45) days following the SEC Approval Date, and (iii) subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the adoption of this Agreement and the approval of the Mergers and the other matters presented to the Parent Stockholders for approval or adoption at the Special Meeting, including, the Stockholder Matters. Notwithstanding the foregoing provisions of this Section 5.1(b), Parent shall make one or more successive postponements or adjournments of the Special Meeting, in each case, to the extent required (i) to ensure that any supplement or amendment is made to the Proxy Statement/Prospectus that Parent, after reasonable consultation with the Company, has determined in good faith is required to satisfy the conditions of Section 5.1(c) below or any other applicable Law or (ii) if on a date for which the Special Meeting is scheduled, Parent, after reasonable consultation with the Company, reasonably determines in good faith that any of the Stockholder Matters will not be approved at the Special Meeting or the Mergers cannot be consummated for any reason; provided, that Parent continues to satisfy its obligations under Section 5.1(d) below and Parent shall reconvene such Special Meeting as promptly as practicable following such time as the matters described in clauses (i) and (ii) have been resolved.
(c) Parent shall comply with all applicable provisions of and rules under the Securities Act, the Exchange Act and all applicable provisions of the DGCL in the preparation, filing and distribution of the Proxy Statement/Prospectus, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure Parent represents and warrants that the Proxy Statement will Statement/Prospectus shall not, as of the filing date of the Proxy Statement (or any amendment or supplement thereto) or on which it is first distributed to Parent Stockholders, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer Parent shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Company or any other information furnished by Seller Parent the Company in writing for inclusion in the Proxy Statement/Prospectus). No filing of, or amendment or supplement to the Proxy Statement/Prospectus will be made without the approval of Parent and the Company (such approval not to be unreasonably withheld, conditioned or delayed), and Parent shall promptly transmit any such amendment or supplement to the Parent Stockholders, if at any time prior to the Special Meeting there shall be discovered any information that should be set forth in an amendment or supplement to the Proxy Statement/Prospectus.
(cd) Neither Buyer nor the Board Parent, acting through its board of Directors of Buyer directors, shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement Statement/Prospectus the recommendation of its board of directors that the Board of Directors of Buyer that stockholders Parent Stockholders vote in favor of the issuance adoption of Buyer Common Stockthis Agreement and the approval of the Mergers and the other matters referred to in Section 5.1(a), all as required and pursuant shall otherwise use reasonable best efforts to this Agreement, (C) solicit proxies from its stockholders for obtain approval of the Buyer Stockholder Approval matters referred to in Section 5.1(a). Neither Parent’s board of directors nor any committee or (ii) agent or representative thereof shall withdraw, modify or qualify, or propose publicly to withdraw, or modify or qualify, in a manner adverse to Seller Parentthe Company, its the Parent board of director’s recommendation that Buyer’s stockholders approve the issuance Parent Stockholders vote in favor of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635adoption of any of the Stockholder Matters.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Northern Star Investment Corp. II)
Proxy Statement; Special Meeting. (a) Buyer shallAs promptly as reasonably practicable after the execution and delivery of this Agreement by the parties hereto, in accordance with applicable Law and Buyer’s Organizational Documents: (i) Parent shall prepare and file with the SEC no later than five (5) Business Days following under the date Exchange Act, proxy materials for the purpose of this Agreement, a preliminary proxy statement relating to the solicitation of soliciting proxies from the stockholders of Buyer for the Buyer Stockholder Approval and (A) respond promptly to any comments made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement Parent (the “Proxy StatementParent Stockholders”) to be mailed to Buyer’s stockholders no later than the later of (x) the expiration vote in favor of the ten approval of this Agreement and the approval of the transactions contemplated by this Agreement (10)-day period required by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review the preliminary proxy statementcollectively, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing DateStockholder Approval Matters”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause at a special meeting of its stockholders Parent Stockholders to be called and held for such purpose (and for such other purposes as may be necessary to effect the transactions contemplated herein) (the “Special Meeting”) ). Such proxy materials shall be in the form of a proxy statement to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date used for the purpose of obtaining soliciting such proxies from Parent Stockholders (such proxy statement, together with any accompanying letter to stockholders, notice of meeting and form of proxy, shall be referred to herein as the “Proxy Statement”). Buyer Stockholder Approval. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote make reasonable efforts to respond to reasonable requests in favor of the issuance of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation of the Proxy Statement and shall promptly upon the request of Seller, provide any information regarding Buyer which is required to be included in the Proxy Statement. Prior to filing the Proxy Statement or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Buyer and its counsel shall provide Seller Parent with be given an opportunity to review and comment on such document the Proxy Statement prior to its filing with the SEC. Parent shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable efforts to resolve as promptly as reasonably practicable all SEC comments thereon. Buyer shall use its commercially reasonable efforts to promptly respond to any reasonable requests from Seller to assist Seller in the preparation of, and responding to SEC comments on, information regarding the Buyer included or responseto be included in the Proxy Statement.
(b) Buyer Promptly following the resolution of all SEC comments on the Proxy Statement, Parent shall mail the Proxy Statement to Parent stockholders and, pursuant thereto, shall call the Special Meeting in accordance with Chapter 156B of the Massachusetts General Laws (such meeting to be held within forty five (45) days of the date the Proxy Statement is first mailed to Parent Stockholders) and solicit proxies from Parent Stockholders to vote in favor of the Stockholder Approval Matters at the Special Meeting.
(c) Parent shall comply with all applicable provisions of and rules and regulations under the Exchange Act and all applicable provisions of Chapter 156B of the DGCL Massachusetts General Laws in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer Parent shall ensure that the Proxy Statement will not, as of the filing date of the Proxy Statement (or any amendment or supplement thereto) or does not, as of the date on which it is mailed to Parent Stockholders, and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made, in the light of the circumstances under in which they were made, not false or misleading (provided that Buyer the Parent shall not be responsible for the accuracy or completeness of any information relating to Seller Parent the Buyer or any other information furnished by Seller Parent the Buyer in writing for inclusion in the Proxy Statement).
(cd) Neither Buyer nor shall promptly inform Parent if any of the information supplied by Buyer in writing for inclusion in the Proxy Statement to be mailed to the stockholders of the Parent in connection with the Special Meeting will, on the date the Proxy Statement (or any amendment or supplement thereto) is first mailed to Parent Stockholders or at the time of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made, in light of the circumstances in which they were made, not false or misleading.
(e) Parent shall consult with Buyer regarding the date of the Special Meeting and shall not postpone or adjourn (other than for the absence of a quorum) the Special Meeting without the consent of Buyer. Parent shall use its commercially reasonable efforts to solicit from its stockholders proxies in favor of the approval of the Stockholder Approval Matters and shall take all other commercially reasonable action necessary or advisable to secure the vote or consent of stockholders required to effect the transactions contemplated by this Agreement. Parent’s obligation to call, give notice of, convene and hold the Special Meeting in accordance with this Section 6.7 shall not be limited to or otherwise affected by the commencement, disclosure, announcement or submission to Seller of any Acquisition Proposal or any change in the Board of Directors recommendation regarding any of the Stockholder Approval Matters, except in the case of a Superior Offer or for Parent’s Board of Directors to comply with its fiduciary duties.
(f) Subject to Section 6.7(g): (i) the Board of Directors of Buyer Parent shall (i) fail to (A) call, notice or hold recommend that Parent’s stockholders vote in favor of and approve the Stockholder Approval Matters at the Special Meeting, ; (Bii) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement shall include a statement to the effect that the Board of Directors of Parent has recommended that Parent’s stockholders vote in favor of and approve the Stockholder Approval Matters at the Special Meeting; and (iii) neither the Board of Directors of Parent nor any committee thereof shall withdraw, amend or modify, or propose or resolve to withdraw, amend or modify in a manner adverse to Buyer, the recommendation of the Board of Directors of Buyer Parent that Parent’s stockholders vote in favor of and approve the issuance of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval Matters.
(g) Nothing in this Agreement shall prevent the Board of Directors of Parent from withholding, withdrawing, amending or (ii) modifying its recommendation in favor of the Stockholder Approval Matters if the Board of Directors of Parent reasonably concludes in good faith, after consultation with its outside counsel, that the failure to withhold, withdraw, amend or modify such recommendation would violate its fiduciary obligations under applicable law or qualify, or propose publicly in the event of a Superior Offer; provided that Parent shall have delivered to withdraw, modify or qualify, in Buyer a manner adverse prior written notice advising Buyer that it intends to Seller Parent, take such action and describing its recommendation that Buyer’s stockholders approve reasons for taking such action (such notice to be delivered not less than three (3) business days prior to the issuance of Buyer Common Stock pursuant to this Agreement and the Financing in accordance with NASDAQ Rule 5635time such action is taken).
Appears in 1 contract
Sources: Asset Purchase Agreement (Seracare Life Sciences Inc)
Proxy Statement; Special Meeting. (a) Buyer shallAs soon as is reasonably practicable after receipt by Parent from the Company of all financial and other information relating to the Company as Parent may reasonably request for its preparation, in accordance Parent shall prepare proxy materials, with applicable Law and Buyer’s Organizational Documents: (i) prepare the assistance of the Company and file with the SEC no later than five (5) Business Days following under the date Exchange Act, and with all other applicable regulatory bodies, for the purpose of this Agreement, a preliminary proxy statement relating to the solicitation of soliciting proxies from holders of Parent Ordinary Shares to vote, at a meeting of holders of Parent Ordinary Shares to be called and held for such purpose (the stockholders “Special Meeting”), in favor of Buyer for the Buyer Stockholder Approval and (A) respond promptly the adoption of this Agreement and the approval of the Merger (“Parent Shareholder Approval”), (B) amending and restating Parent’s Memorandum and Articles of Association, effective upon the Closing, to any comments be substantially in the form of Exhibit A annexed hereto, providing for, among other things, (I) the change of the name of Parent to “Tecnoglass Inc.;” (II) the existence of Parent to be perpetual; and (III) the removal of various provisions no longer applicable to Parent following consummation of the transactions contemplated herein (the “Charter Amendment”); (C) the adoption of an option plan (the “Parent Plan”); (D) the election to the board of directors of Parent of the individuals identified in the Proxy Statement; (E) the approval of the convertibility of outstanding promissory notes issued to Parent’s Affiliates in connection with loans made by such Affiliates to Parent to satisfy its working capital needs into Parent Warrants; (F) any other proposals Parent and the SEC Company deem necessary or desirable to effectuate the transactions contemplated herein; and (G) an adjournment proposal, if necessary, to adjourn the Special Meeting if, based on the tabulated vote count, Parent is not authorized to proceed with respect to the preliminary Merger. Such proxy materials shall be in the form of a proxy statement and cause a definitive proxy statement to be used for the purposes of soliciting such proxies from holders of Parent Ordinary Shares for the matters to be acted upon at the Special Meeting (the “Proxy Statement”) ). Parent, with the assistance of the Company, shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use reasonable best efforts to cause the Proxy Statement to be mailed approved by the SEC for mailing to Buyer’s stockholders the holders of Parent Ordinary Shares as promptly as practicable. Parent will advise the Company promptly after it receives notice thereof, of the time when the Proxy Statement has been approved by the SEC or any supplement or amendment has been filed, or the issuance of any stop order, or of any request by the SEC for amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information.
(b) As soon as practicable following approval by the SEC, Parent shall distribute the Proxy Statement to the holders of Parent Ordinary Shares and, pursuant thereto, shall call the Special Meeting in accordance with the Companies Law for a date no later than thirty (30) days following the later of (x) the expiration approval of the ten (10)-day period required Proxy Statement by SEC Rule 14a-6 and (y) if the SEC advises Buyer that it will review and, subject to the preliminary proxy statementother provisions of this Agreement, the day following the SEC staff’s clearance of the preliminary proxy statement (the “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) cause a special meeting holders of its stockholders (the “Special Meeting”) Parent Ordinary Shares to be duly called, noticed and held no later than the twelfth (12th) day following the Mailing Date for the purpose of obtaining the Buyer Stockholder Approval. The Proxy Statement shall include the recommendation of the Board of Directors of Buyer that stockholders vote in favor of the issuance adoption of Buyer Common Stock pursuant to this Agreement and the Financing. The Proxy Statement shall not incorporate by reference any information from any other filing made with the SEC. Seller Parent shall furnish to Buyer all information concerning Seller Parent and its Subsidiaries as Buyer may reasonably request in connection with the preparation approval of the Proxy Statement. Prior Merger and the other matters presented to filing the Proxy Statement shareholders of Parent for approval or mailing adoption at the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of Special Meeting, including, without limitation, the SEC with respect thereto, Buyer shall provide Seller Parent with an opportunity to review and comment on such document or responsematters described in Section 5.1(a).
(bc) Buyer Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL Companies Law in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Buyer shall ensure that the Proxy Statement will not, as of the filing date of the Proxy Statement (or any amendment or supplement thereto) or as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (provided that Buyer shall not be responsible for the accuracy or completeness of any information relating to Seller Parent furnished by Seller Parent for inclusion in the Proxy Statement).
(cd) Neither Buyer nor the Board Parent, acting through its board of Directors of Buyer directors, shall (i) fail to (A) call, notice or hold the Special Meeting, (B) prepare and file with the SEC the preliminary or definitive Proxy Statement and include in the Proxy Statement the recommendation of its board of directors that the Board holders of Directors of Buyer that stockholders Parent Ordinary Shares vote in favor of the issuance adoption of Buyer Common Stock, all as required and pursuant to this Agreement, (C) solicit proxies from its stockholders for the Buyer Stockholder Approval or (ii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Seller Parent, its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement and the Financing approval of the Merger, and shall otherwise use reasonable best efforts to obtain the Parent Shareholder Approval.
(e) No amendment or supplement to the Proxy Statement will be made by Parent without the approval of the Company which shall not be unreasonably withheld and Parent shall promptly transmit any such amendment or supplement to its shareholders, if at any time prior to the Special Meeting there shall be discovered any information that should be set forth in accordance with NASDAQ Rule 5635an amendment or supplement to the Proxy Statement.
Appears in 1 contract