Proxy Statement; Special Meeting. (a) 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 proxy statement in preliminary form relating to the 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 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 Seller as soon as reasonably practicable (and in any event within five (5) Business Days) after the earlier to occur of: (i) if Seller does not receive comments from the SEC with respect to the preliminary Proxy Statement and does not reasonably believe that it will receive comments, the eleventh (11th) calendar day immediately following the date of filing of the preliminary Proxy Statement with the SEC and (ii) 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 (such record date to be determined by Seller, subject to Buyer’s approval (such approval not to be unreasonably withheld)). Buyer shall cooperate with Seller 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. 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 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 an opportunity to review and comment on such document or response (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. (d) Seller shall, as soon as practicable following the date of this Agreement and subject to the SEC and the SEC staff completing their review (or no review) of the Proxy Statement as contemplated by Section 6.11(a) and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting of the holders of Common Stock (the “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, (iv) to allow additional solicitation of votes in order to obtain the Stockholder 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the 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 Transactions). Without limiting the generality of the foregoing and except as provided in Section 6.02, unless this Agreement has been terminated in accordance with its 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) As soon as practicable 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, 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 Stockholder Meeting (solicitation of proxies from the “Proxy Statement”). Seller will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of 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 Seller as soon as reasonably practicable Buyer for the Buyer Stockholder Approval and (and in A) respond promptly to any event within five (5) Business Days) after the earlier to occur of: (i) if Seller does not receive comments from made by the SEC with respect to the preliminary proxy statement and cause a definitive proxy statement (the “Proxy Statement 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 does not reasonably believe (y) if the SEC advises Buyer that it will receive commentsreview the preliminary proxy statement, the eleventh (11th) calendar day immediately following the date of filing SEC staff’s clearance of the preliminary Proxy Statement with proxy statement (the SEC “Mailing Date”) and (B) solicit proxies from its stockholders for the Buyer Stockholder Approval and (ii) if Seller does receive comments from cause a special meeting of its stockholders (the SEC with respect “Special Meeting”) to be duly called, noticed and held no later than the preliminary Proxy Statement, clearance by twelfth (12th) day following the SEC with respect to such comments; provided, however, in no event will Seller be required to file 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 prior SEC. Seller Parent shall furnish to the record date for Company stockholders entitled to vote at the Stockholder Meeting Buyer all information concerning Seller Parent and its Subsidiaries as set forth in the preliminary Proxy Statement (such record date to be determined by Seller, subject to Buyer’s approval (such approval not to be unreasonably withheld)). Buyer shall cooperate with Seller may reasonably request in connection with the preparation of the Proxy Statement, including providing . Prior 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. 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, Buyer shall provide Seller shall (i) provide Buyer Parent with an opportunity to review and comment on such document or response (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 Lawresponse.
(db) Seller shallBuyer 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 soon as practicable following of the filing date of this Agreement and subject to the SEC and the SEC staff completing their review (or no review) of the Proxy Statement (or any amendment or supplement thereto) or as contemplated by Section 6.11(a) and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting of the holders date of Common Stock 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 (the “Stockholder Meeting”) provided that Buyer shall not be responsible for the purpose accuracy or completeness of seeking any information relating to Seller Parent furnished by Seller Parent for inclusion in the Stockholder Approval. Seller may not postpone or adjourn Proxy Statement).
(c) Neither Buyer nor the Stockholder Meeting without the prior written consent Board of ▇▇▇▇▇. Notwithstanding the foregoing, Seller may postpone or adjourn the Stockholder Meeting (on one or more occasions) Directors of Buyer shall (i) with fail to (A) call, notice or hold 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 Special Meeting, (ivB) to allow additional solicitation of votes in order to obtain prepare and file with the Stockholder Approval SEC the preliminary 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the 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 Transactions). Without limiting the generality recommendation of the foregoing Board of Directors of Buyer that stockholders vote in favor of the issuance of Buyer Common Stock, all as required and except as provided 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 Section 6.02a manner adverse to Seller Parent, unless its recommendation that Buyer’s stockholders approve the issuance of Buyer Common Stock pursuant to this Agreement has been terminated and the Financing in accordance with its 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 stockholdersNASDAQ 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) As 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, Parent shall prepare and file with the SEC under the Exchange Act, and with all other applicable regulatory bodies, a proxy statement (“Proxy Statement”) to be used for the purpose of soliciting proxies from holders of Parent Common Stock to vote in favor of (i) the adoption of this Agreement and the approval of the Transaction Merger, (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, (iv) amendments to Parent’s Certificate of Incorporation to be effective from and after the Closing to amend Article Sixth thereof 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 date Closing, (v) the election to the board of this Agreementdirectors of Parent of the individuals identified on Schedule 6.3 (the matters set forth in clauses (i) through (v) being referred to herein as the “Parent Stockholder Matters”), Seller shall prepare (with Buyer’s reasonable cooperationvi) andthe adoption of an incentive stock option plan (the “Parent Plan”), no later than ten and (10vii) days or such other later date matters as mutually agreed upon by Seller between the Company and Buyer in writing, file with the SEC Parent at a proxy statement in preliminary form relating meeting of holders of Parent Common Stock to the Stockholder Meeting be called and held for such purpose (the “Proxy StatementSpecial Meeting”). Seller will cause The Parent Plan shall provide that an aggregate of fifteen percent (15%) of the shares of Parent Common Stock to be outstanding at Closing shall be reserved for issuance pursuant to the Parent Plan. The Company and Noble shall each furnish to Parent all information concerning the Company and/or Noble as Parent may reasonably request in connection with the preparation of the Proxy Statement. The Company and its counsel and Noble and its counsel shall be given an opportunity to review and comment on the preliminary Proxy Statement prior to its filing with the SEC, and any SEC comments on the Proxy Statement to comply as to form in all material respects received by Parent after the initial filing of the Proxy Statement. Parent, with the applicable provisions assistance of the Exchange Act Company and Noble, shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to be filed with the SEC and then mailed to stockholders of Seller as soon as reasonably practicable (and in any event within five (5) Business Days) after the earlier to occur of: (i) if Seller does not receive comments from the SEC with respect to the preliminary Proxy Statement and does not reasonably believe that it will receive comments, the eleventh (11th) calendar day immediately following the date of filing of the preliminary Proxy Statement with the SEC and (ii) if Seller does receive comments from the SEC with respect to the preliminary Proxy Statement, clearance approved by the SEC with respect to such comments; provided, however, in no event will Seller be as promptly as practicable. Parent shall also take any and all actions required to file satisfy the requirements of the Securities Act and the Exchange Act.
(b) 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 SEC prior to the record date for Company stockholders entitled to vote at the Stockholder Meeting as set forth in the preliminary Proxy Statement (such record date to be determined by SellerCorporate Law and, subject to Buyer’s 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.
(such approval not to be unreasonably withheld)). Buyer c) Parent shall cooperate comply with Seller all applicable provisions of and rules under the Exchange Act and all applicable provisions of the Corporate Law in connection with the preparation preparation, filing, and distribution of the Proxy Statement, including providing to Seller any the solicitation of proxies thereunder, and all information regarding Buyer the calling and its Affiliates as may be required to be disclosed therein as promptly as possible after the date hereof. Seller shall notify Buyer promptly holding of the receipt of any comments from Special Meeting. Without limiting the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to foregoing, Parent shall ensure that the Proxy Statement or for additional information and shall provide Buyer with copies does not, as of all substantive correspondence between Seller or any the date on which it is first distributed to holders of its representatives, on the one handParent Common Stock, and the SEC or its staff, on the other hand and also provide Buyer with copies as 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 TransactionsSpecial 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 Parent shall not be responsible for the accuracy or completeness of any information relating to the Company or Noble or any other information furnished by 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 statements thereinstatement 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 they were it is made, not misleading. If, at any time prior to receipt of Stockholder Approval, any event occurs is false or misleading 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 ofmaterial fact, or a supplement to, the Proxy Statement so that the Proxy Statement shall not contain an untrue statement or omit omits 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, statement therein not false or 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 an opportunity to review and comment on such document or response (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.
(d) Seller shallParent, as soon as practicable following the date acting through its Board of this Agreement and subject to the SEC and the SEC staff completing their review (or no review) of the Proxy Statement as contemplated by Section 6.11(a) and as may be amended as provided in Section 6.11(b)Directors, duly call, give notice of, convene and hold a meeting of the holders of Common Stock (the “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, (iv) to allow additional solicitation of votes in order to obtain the Stockholder 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the 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 the recommendation of its Board of Directors that the holders of Parent Common Stock vote upon or consider any Acquisition Proposal (other than the Transactions). Without limiting the generality in favor of the foregoing adoption of Parent Stockholders Matters and except as provided in Section 6.02Parent Plan, unless this Agreement has been terminated in accordance with its terms, Seller and shall submit the Transactions and this Agreement for otherwise use commercially reasonable best efforts to obtain the approval of its stockholders at the Parent 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 SellerMatters, Parent Plan and such other matters as mutually agreed upon between the Seller Board, Seller’s Representatives or stockholdersCompany and Parent.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Black Ridge Acquisition Corp.)
Proxy Statement; Special Meeting. (a) As soon as practicable following Parent shall use its best efforts to, and the date of this AgreementCompany shall use best efforts to cooperate with Parent in order to, 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 under the Exchange Act, and with all other applicable regulatory bodies, a preliminary proxy statement pursuant to Section 14(a) of 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 called and held for such purpose (the “Special Meeting”) as provided below. Such proxy materials shall be in the form of a proxy statement in preliminary form relating to be used for the purpose of soliciting such proxies from holders of the Parent’s Stock. The Company shall furnish to the Stockholder Meeting (Parent all information concerning the “Proxy Statement”). Seller will cause Company as the Proxy Statement to comply as to form in all material respects with the applicable provisions of 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 Seller as soon as Parent may reasonably practicable (and in any event within five (5) Business Days) after the earlier to occur of: (i) if Seller does not receive comments from the SEC with respect to the preliminary Proxy Statement and does not reasonably believe that it will receive comments, the eleventh (11th) calendar day immediately following the date of filing of the preliminary Proxy Statement with the SEC and (ii) 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 (such record date to be determined by Seller, subject to Buyer’s approval (such approval not to be unreasonably withheld)). Buyer shall cooperate with Seller request in connection with the preparation of the Preliminary Proxy Statement. The Parent shall promptly respond to any SEC comments on the Preliminary Proxy Statement, including providing with the assistance of the Company, and shall otherwise use commercially reasonable efforts to Seller resolve any such SEC comments relating to the Preliminary Proxy Statement. The Parent shall also take any and all information regarding Buyer and its Affiliates as may be required such actions to be disclosed therein as promptly as possible after satisfy the date hereof. Seller shall notify Buyer promptly requirements of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Buyer with copies of all substantive correspondence between Seller or any of its representatives, on the one hand, Securities Act 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 misleadingExchange Act. 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 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, Seller the Parent shall (i) provide Buyer the Stockholders’ Representative with an opportunity to review and comment on such document or response response.
(which b) 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 be considered by Seller in good faithfile and distribute a definitive proxy statement pursuant to Section 14(a) and of the Exchange Act (iithe “Definitive Proxy Statement”) not file or mail such document, or respond to the SECholders of the Parent’s Stock and, prior pursuant thereto, shall, as promptly as practicable, call the Special Meeting and, subject to receiving the approval other provisions of Buyerthis 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, the Company shall ensure that the Definitive Proxy Statement does not, as of the date on which approval it is distributed to the holders of the 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 light of the circumstances under which they were made, not misleading (provided that the Parent shall not be unreasonably withheld, conditioned responsible for the accuracy or delayed, except that no such Buyer approval shall be required in connection with an Adverse Recommendation Change, completeness of any information relating to the exercise by Seller of its rights and obligations under Section 6.02 Company or if required any other information furnished by the SEC Company for inclusion in the Preliminary Proxy Statement or appliable LawDefinitive 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 (or any amendment or supplement thereto), as the case may be, or, in the case of the Definitive Proxy Statement, 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.
(d) Seller shallThe Parent, as soon as practicable following acting through its board of directors, shall include in the date Preliminary Proxy Statement and the Definitive Proxy Statement the recommendation of its board of directors that the holders of the Parent’s Stock vote in favor of the adoption of this Agreement and subject to the SEC and the SEC staff completing their review (or no review) approval of the Proxy Statement as contemplated by Section 6.11(a) transactions set forth therein, and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting of the holders of Common Stock (the “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 otherwise use commercially 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, (iv) to allow additional solicitation of votes in order efforts to obtain the Stockholder 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the Proxy Statement and (y) Seller shall use reasonable best efforts to solicit the Parent Stockholder Approval. Seller shall not include in the Proxy Statement any proposal to vote upon or consider any Acquisition Proposal (other than the Transactions). Without limiting the generality of the foregoing and except as provided in Section 6.02, unless this Agreement has been terminated in accordance with its 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: Merger Agreement (BioScrip, Inc.)
Proxy Statement; Special Meeting. (a) 5.11.1 As soon promptly as practicable following after the date of this Agreement, hereof 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 to be used in preliminary form relating to connection with the Stockholder solicitation of proxies for use at the Shareholder Meeting (the “Proxy Statement”). Seller will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and Purchaser shall use its commercially reasonable best efforts to cause the Proxy Statement respond to be filed with any comments of the SEC and then mailed to stockholders of its staff, and Seller shall file a definitive Proxy Statement as soon as reasonably practicable (following resolution of any SEC comments and in any event within five (5) Business Days) after mail to its shareholders the earlier to occur of: (i) if Seller does not receive comments from the SEC with respect to the preliminary Proxy Statement and does not reasonably believe all other proxy materials for such Shareholder Meeting. Each of Seller and Purchaser shall promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it will receive commentsshall 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 5.10, the eleventh Seller Board shall recommend that the stockholders of Seller vote to authorize and approve the transactions contemplated by this Agreement (11ththe “Seller Board Recommendation”) calendar day immediately following and shall include in the date of filing of the preliminary Proxy Statement with the SEC and (ii) if Seller does receive comments from the SEC with respect such recommendation, subject to the preliminary Proxy Statement, clearance by the SEC with respect to such commentsother terms of this Agreement; provided, however, in no event will that the Seller Board may fail to make, or withdraw, modify or change such recommendation, and shall not be required to file 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 (the “DGCL”) and Seller’s Organizational Documents, establish a record date for, duly call, give notice of, convene and hold a meeting of its shareholders (the “Shareholder Meeting”) for the purpose of obtaining the 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 SEC 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 record date for Company stockholders entitled of the Shareholder Meeting as to vote the aggregate tally of proxies received by Seller with respect to the Shareholder Approval. Without the prior written consent of Purchaser, the adoption of this Agreement and the transactions contemplated hereby and the anticipated dissolution of Seller shall be the only matters (other than procedural matters) that Seller shall propose to be acted on by the shareholders of Seller at the Stockholder Meeting Shareholder Meeting.
5.11.3 Purchaser shall furnish all information concerning Purchaser as set forth in the preliminary Proxy Statement (such record date to may be determined by Seller, subject to Buyer’s approval (such approval not to be unreasonably withheld)). Buyer shall cooperate with Seller reasonably requested in connection with the preparation and filing with the SEC of the Proxy Statement, including providing Statement so as to Seller any and all information regarding Buyer comply with Applicable Law. Purchaser and its Affiliates as may counsel shall be required given a reasonable opportunity to be disclosed therein review and comment on the preliminary and definitive Proxy Statement before such document (or 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 possible practicable after the date hereof. Seller shall notify Buyer promptly of the receipt of any comments from the SEC or thereof, provide Purchaser and its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall 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 counsel with copies of any written comments, and advise Buyer Purchaser and its counsel of any oral comments, in each case, with respect to the Proxy Statement (or any amendment or supplement thereto) received from the SEC.
SEC or its staff, (bii) Each of Seller provide Purchaser and its counsel a reasonable opportunity to review Seller’s proposed response to such comments, and (iii) consider for inclusion in Seller’s written response to such comments any input reasonably and timely proposed by ▇▇▇▇▇▇▇▇▇ and its counsel. Purchaser hereby represents, covenants and agrees that none of the information supplied or to be supplied by it or on behalf of Purchaser or any Affiliate thereof for inclusion or incorporation by reference in the Proxy Statement or any amendment or supplement thereto willshall, at the date it is first mailed to the shareholders of mailing to Seller stockholders and or at the time of the Stockholder Shareholders Meeting to be held in connection with or at the Transactionstime of any amendment or supplement thereof, 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 are made, not misleading. If; provided, at any time prior to receipt of Stockholder Approvalhowever, any event occurs that no representation or warranty is made by Purchaser with respect to Seller statements made 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 incorporated by reference 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 an opportunity to review and comment extent based on such document or response (which comments shall be considered information supplied 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.
(d) Seller shall, as soon as practicable following the date of this Agreement and subject to the SEC and the SEC staff completing their review (or no review) preparation of the Proxy Statement as contemplated for inclusion or incorporation by Section 6.11(a) and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting of the holders of Common Stock (the “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, (iv) to allow additional solicitation of votes in order to obtain the Stockholder 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the 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 Transactions). Without limiting the generality of the foregoing and except as provided in Section 6.02, unless this Agreement has been terminated in accordance with its 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 stockholdersreference therein.
Appears in 1 contract
Proxy Statement; Special Meeting. (a) As soon as is reasonably practicable following after the date of this Agreement, Seller the Purchaser 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 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 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 in preliminary form relating to be used for the Stockholder purpose of soliciting such proxies from holders of Purchaser Stock for the matters to be acted upon at the Special Meeting (the “Proxy Statement”). Seller will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and The Company shall use its reasonable best efforts to cause the Proxy Statement to be filed with the SEC and then mailed to stockholders of Seller as soon as reasonably practicable (and in any event within five (5) Business Days) after the earlier to occur of: (i) if Seller does not receive comments from the SEC with respect furnish to the preliminary Proxy Statement and does not Purchaser all information concerning the Company as the Purchaser may reasonably believe that it will receive comments, the eleventh (11th) calendar day immediately following the date of filing of the preliminary Proxy Statement with the SEC and (ii) 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 (such record date to be determined by Seller, subject to Buyer’s approval (such approval not to be unreasonably withheld)). Buyer shall cooperate with Seller request in connection with the preparation of the Proxy Statement. The Company and its counsel shall be given an opportunity to review and comment on such proxy materials, including providing amendments thereto, prior to Seller their filing with the Commission and the Purchaser will not file any documents containing information that the Company has reasonably determined is incorrect or misleading and all information regarding Buyer 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 its Affiliates as may be required shall otherwise use reasonable best efforts to cause the definitive Proxy Statement to be disclosed therein approved by the Commission for distribution to the Purchaser’s stockholders as promptly as possible after the date hereof. 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 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 SECpracticable.
(b) Each of Seller and ▇▇▇▇▇ agrees that none As soon as practicable following the approval by the Commission of the information supplied or to be supplied by it for inclusion or incorporation by reference in 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 any amendment or supplement thereto willadoption at the Special Meeting.
(c) The Purchaser shall comply with all applicable provisions of and rules under the federal and state (if applicable) securities laws and all applicable provisions of the DGCL in the preparation, at 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 Purchaser shall ensure that the Proxy Statement does not, as of the date on which the Proxy Statement is first distributed to the stockholders of the Purchaser, and as of the date of mailing to Seller stockholders and at the time of the Stockholder Meeting to be held in connection with the TransactionsSpecial 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 the Purchaser shall not be responsible for the accuracy or completeness of any information relating to the Company or any other information furnished by 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 first distributed to the stockholders of the Purchaser 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 statements thereinstatement therein not false or misleading.
(d) The Purchaser, acting through its board of directors, shall include in light the Proxy Statement the recommendation of its board of directors that the holders of Purchaser Stock vote in favor of the circumstances under which they were madeapproval of the transactions contemplated by this Agreement, and, subject to applicable Law and the exercise of its fiduciary duties, shall not misleadingwithdraw or modify its recommendation. IfThe Purchaser shall otherwise use its reasonable best efforts to obtain the Purchaser Stockholder Approval and the Management Members shall reasonably cooperate with the Purchaser, at 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 time prior application or other filing made to receipt 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) calling, giving notice of, convening and holding stockholder meetings for the purpose of seeking Purchaser Stockholder Approval, and (D) the preparation, filing and mailing of any event occurs other documents or materials required solely as a direct result of the acquisition of Holdings by a public company, and (ii) all reasonable third party fees and disbursements incurred by the Company (other than accounting fees associated with respect to Seller or Buyer or any change occurs with respect to other information preparation of financial statements to be included in the Proxy Statement, which is required to be described ) in an amendment of, or a supplement to, connection with 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 BuyerCompany’s cooperation, any necessary amendment or supplement to the Proxy Statement. Seller will also advise Buyerassistance, promptly after it receives notice thereof, of any request by the SEC for amendment and review of the Proxy Statement.
(c) Notwithstanding foregoing documentation, including, without limitation, reasonable attorney’s fees and expenses. Subject to Section 2.2(c), the foregoingCompany shall bear and pay all costs and expenses incurred in connection with the preparation, prior delivery and review of the financial statements of the Company and Holdings to filing or mailing be included in 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 an opportunity to review and comment on such document or response (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“Accounting Fees”).
(d) Seller shall, as soon as practicable following the date of this Agreement and subject to the SEC and the SEC staff completing their review (or no review) of the Proxy Statement as contemplated by Section 6.11(a) and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting of the holders of Common Stock (the “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, (iv) to allow additional solicitation of votes in order to obtain the Stockholder 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the 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 Transactions). Without limiting the generality of the foregoing and except as provided in Section 6.02, unless this Agreement has been terminated in accordance with its 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
Proxy Statement; Special Meeting. (a) As soon as is reasonably practicable following after receipt by Parent from the date Company of this Agreementall financial and other information relating to the Company as Parent may reasonably request for its preparation, Seller Parent 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 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 (i) the adoption of this Agreement and the approval 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 in preliminary form relating to be used for the Stockholder Meeting purpose of soliciting such proxies from holders of Parent Common Stock (the “"Proxy Statement”"). Seller will cause The Company shall furnish to Parent all information concerning the Company as Parent may reasonably request in connection with the preparation of the Proxy Statement. The Company and its counsel shall 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 to comply as to form in all material respects with the applicable provisions of the Exchange Act and shall otherwise use its reasonable best efforts to cause the Proxy Statement to be filed with the SEC and then mailed to stockholders of Seller as soon as reasonably practicable (and in any event within five (5) Business Days) after the earlier to occur of: (i) if Seller does not receive comments from the SEC with respect to the preliminary Proxy Statement and does not reasonably believe that it will receive comments, the eleventh (11th) calendar day immediately following the date of filing of the preliminary Proxy Statement with the SEC and (ii) if Seller does receive comments from the SEC with respect to the preliminary Proxy Statement, clearance approved by the SEC with respect to such comments; provided, however, in no event will Seller be as promptly as practicable. Parent shall also take any and all actions required to file 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 registration or qualification 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) 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 SEC prior to the record date for Company stockholders entitled to vote at the Stockholder Meeting as set forth in the preliminary Proxy Statement (such record date to be determined by SellerDGCL and, subject to Buyer’s 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).
(such approval not to be unreasonably withheld)). Buyer c) Parent shall cooperate comply with Seller all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in connection with the preparation preparation, filing and distribution of the Proxy Statement, including providing to Seller any the solicitation of proxies thereunder, and all information regarding Buyer the calling and its Affiliates as may be required to be disclosed therein as promptly as possible after the date hereof. Seller shall notify Buyer promptly holding of the receipt of any comments from Special Meeting. Without limiting the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to foregoing, Parent shall ensure that the Proxy Statement or for additional information and shall provide Buyer with copies does not, as of all substantive correspondence between Seller or any the date on which it is first distributed to stockholders of its representatives, on the one handParent, and the SEC or its staff, on the other hand and also provide Buyer with copies as 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 TransactionsSpecial 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 Parent shall not be responsible for the accuracy or completeness of any information relating to the Company or any other information furnished by 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 statements therein, in light of the circumstances under which they were made, statement therein not false or 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 an opportunity to review and comment on such document or response (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.
(d) Seller shallParent, as soon as practicable following acting through its board of directors, shall include in the date Proxy Statement the recommendation of its board of directors that the holders of Parent Common Stock vote in favor of the adoption of this Agreement and subject to the SEC and the SEC staff completing their review (or no review) approval of the Proxy Statement as contemplated by Section 6.11(a) and as may be amended as provided in Section 6.11(b)Merger, duly call, give notice of, convene and hold a meeting of the holders of Common Stock (the “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, (iv) to allow additional solicitation of votes in order to obtain the Stockholder 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the Proxy Statement and (y) Seller shall otherwise use reasonable best efforts to solicit obtain the Parent Stockholder Approval. Seller shall not include in the Proxy Statement any proposal to vote upon or consider any Acquisition Proposal (other than the Transactions). Without limiting the generality of the foregoing and except as provided in Section 6.02, unless this Agreement has been terminated in accordance with its 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
Proxy Statement; Special Meeting. (a) As soon as reasonably practicable following the date after receipt by Buyer from Target of this Agreementall financial and other information relating to Target as Buyer may reasonably request for its preparation, Seller which Target shall deliver as soon as reasonably practicable, Buyer 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 under the Securities Act and the Exchange Act, and with all other applicable regulatory bodies a proxy statement in preliminary form relating to the Stockholder Meeting (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 called and held for the 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”). Seller will cause 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 to comply as to form in all material respects with the applicable provisions of the Exchange Act and shall otherwise use its commercially reasonable best efforts to cause the Proxy Statement to be filed with declared effective by the SEC as promptly as practicable. Buyer shall also take any and then mailed all actions required to stockholders satisfy the requirements of Seller as the Securities Act and the Exchange Act.
(b) As soon as reasonably practicable (and in any event within five (5) Business Days) after following the earlier to occur of: (i) if Seller does not receive comments from approval of the SEC with respect to Proxy Statement by the preliminary SEC, Buyer shall distribute the Proxy Statement and does not reasonably believe that it will receive comments, shall call the eleventh Special Meeting for a date no later than thirty (11th30) calendar day immediately days following the date of filing approval of the preliminary Proxy Statement with the SEC and (ii) 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 accordance 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 (such record date to be determined by SellerDGCL and, subject to Buyer’s approval (the other provisions of this Agreement, solicit proxies from such approval not holders to be unreasonably withheld)). vote in favor of 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. Upon receipt of the Buyer Stockholder Approval, Buyer shall cooperate convert the Closing Shares into Buyer Common Stock pursuant to the Certificate of Designations attached as Exhibit F.
(c) Buyer shall comply with Seller all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in connection with the preparation preparation, filing and distribution 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. Seller shall notify Buyer promptly solicitation of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Buyer with copies of all substantive correspondence between Seller or any of its representatives, on the one handproxies thereunder, and the SEC or its staff, on the other hand calling 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 holding 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 an opportunity to review and comment on such document or response (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 LawSpecial Meeting.
(d) Seller shallUntil such time as the Preferred Stock has been converted into Buyer Common Stock, Buyer shall not 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, or (ii) pursuant to transfers of shares of Buyer Common Stock issued and outstanding as soon as practicable following of the date of this Agreement and subject to the SEC and the SEC staff completing their review (Agreement; or no review) of the Proxy Statement as contemplated by Section 6.11(a) and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting of the holders of Common Stock (the “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, (iv) to allow additional solicitation of votes in order to obtain the Stockholder 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement existing warrants and shall include such recommendation and the Seller Determination stock options described in the 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 Transactions). Without limiting the generality of the foregoing and except as provided in Section 6.02, unless this Agreement has been terminated in accordance with its 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 stockholdersBuyer SEC Documents.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Primoris Services CORP)
Proxy Statement; Special Meeting. (a) As soon promptly as practicable following after the date of this Agreementhereof (and in any event within 15 Business Days), 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 to be used in preliminary form relating to connection with the Stockholder solicitation of proxies for use at the Shareholder Meeting (the “Proxy Statement”). Seller will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and Buyer shall use its commercially reasonable best efforts to cause the Proxy Statement respond to be filed with any comments of the SEC and then mailed to stockholders of its staff, and Seller shall file a definitive Proxy Statement as soon as reasonably practicable (following resolution of any SEC comments and in any event within five (5) Business Days) after mail to its shareholders the earlier to occur of: (i) if Seller does not receive comments from the SEC with respect to the preliminary Proxy Statement and does not reasonably believe all other proxy materials for such Shareholder 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 will receive commentsshall 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 6.02, the eleventh Seller Board shall recommend that the stockholders of Seller vote to authorize the Transactions (11th“Seller Board Recommendation”) calendar day immediately following and shall include such recommendation in the date of filing of the preliminary Proxy Statement with the SEC and (ii) 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 that the Seller Board may fail to make, or withdraw, modify or change such recommendation, and shall not be required to file 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 Organizational Documents, establish a record date for, duly call, give notice of, convene and hold a meeting of its shareholders (the “Shareholder Meeting”) 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 SEC 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 at least on a daily basis on each of the last seven Business Days prior to the record date for Company stockholders entitled of the Shareholder Meeting as to the aggregate tally of proxies received by Seller with respect to the Shareholder Approval. Without the prior written consent of Buyer, the adoption of this Agreement and the Transactions, a non-binding vote on executive compensation, and approval of a name change of Seller (as contemplated under Section 6.16) shall be the only matters (other than procedural matters) that Seller shall propose to be acted on by the shareholders of Seller at the Stockholder Meeting as set forth in the preliminary Proxy Statement Shareholder Meeting.
(such record date to be determined by Seller, subject to Buyer’s approval (such approval not to be unreasonably withheld)). c) Buyer shall cooperate with Seller furnish all information concerning Buyer as may be reasonably requested in connection with the preparation and filing with the SEC of the Proxy Statement, including providing Statement so as to Seller any and all information regarding comply with applicable Law. Buyer and its Affiliates as may counsel shall be required given a reasonable opportunity to be disclosed therein review and comment on the preliminary and definitive Proxy Statement before such document (or 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 possible practicable after the date hereof. 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 the Proxy Statement or for additional information and shall thereof, provide Buyer with copies of all substantive correspondence between Seller or any of and its representatives, on the one hand, and the SEC or its staff, on the other hand and also provide Buyer counsel with copies of any written comments, and advise Buyer and its counsel of any oral comments, in each case, with respect to the Proxy Statement (or any amendment or supplement thereto) received from the SEC.
SEC or its staff, (bii) Each of Seller provide Buyer and ▇▇▇▇▇ its counsel a reasonable opportunity to review Seller’s proposed response to such comments, and (iii) consider for inclusion in Seller’s written response to such comments any input reasonably and timely proposed by Buyer and its counsel. Buyer hereby represents, covenants and agrees that none of the information supplied or to be supplied by it or on behalf of Buyer or any Affiliate thereof for inclusion or incorporation by reference in the Proxy Statement or any amendment or supplement thereto willshall, at the date it is first mailed to the shareholders of mailing to Seller stockholders and or at the time of the Stockholder Shareholders Meeting to be held in connection with or at the Transactionstime of any amendment or supplement thereof, 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 are made, not misleading. If; provided, at any time prior to receipt of Stockholder Approvalhowever, any event occurs that no representation or warranty is made by Buyer with respect to Seller statements made 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 incorporated by reference 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 an opportunity to review and comment extent based on such document or response (which comments shall be considered information supplied 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.
(d) Seller shall, as soon as practicable following the date of this Agreement and subject to the SEC and the SEC staff completing their review (or no review) preparation of the Proxy Statement as contemplated for inclusion or incorporation by Section 6.11(a) and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting of the holders of Common Stock (the “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, (iv) to allow additional solicitation of votes in order to obtain the Stockholder 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the 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 Transactions). Without limiting the generality of the foregoing and except as provided in Section 6.02, unless this Agreement has been terminated in accordance with its 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 stockholdersreference therein.
Appears in 1 contract
Proxy Statement; Special Meeting. (a) As soon promptly as practicable following the date of this AgreementClosing Date, Seller shall prepare (with Buyer’s reasonable cooperation) and, no later than and in any event within ten (10) days or such other later date as mutually agreed upon by Seller Business Days of the Closing Date, the Company shall prepare and Buyer in writing, file with the SEC U.S. Securities and Exchange Commission (the “SEC”) a preliminary form of proxy statement in preliminary form relating to a special meeting (the Stockholder Meeting “Special Meeting”) of shareholders of the Company (as so amended and together with any other amendments thereof or supplements thereto, the “Proxy Statement”)) at which shareholders shall be asked to approve the Amendment. Seller will cause Notwithstanding the foregoing, the Company shall provide the Investors with a reasonable opportunity to review and comment on such Proxy Statement, and such Proxy Statement shall be in a form reasonably acceptable to comply as the Investors prior to form in all material respects its filing with the applicable provisions of the Exchange Act and shall SEC. The Company will use its reasonable best efforts to cause the definitive Proxy Statement to be filed with mailed to the Company’s shareholders as promptly as reasonably practicable after confirmation from the SEC that it has no further comments on the Proxy Statement (or that the Proxy Statement is otherwise not to be reviewed by the SEC or no notice of review is received within 10 days of filing the preliminary Proxy Statement, and then mailed to stockholders of Seller in either event such mailing shall occur as soon as reasonably practicable (and in any event within five (5) Business Days) after following the earlier to occur of: (i) if Seller does not receive comments from the SEC with respect to the preliminary Proxy Statement and does not reasonably believe that it will receive comments, the eleventh (11th) calendar 10th day immediately following the date of filing of the preliminary Proxy Statement with the SEC and (ii) if Seller does receive comments from the SEC Statement). Except with respect to the preliminary Proxy Statement, clearance by the SEC Information with respect to such comments; provided, however, the Investors to be provided to the Company expressly for inclusion in no event will Seller be required to file the Proxy Statement with as provided for below, the SEC prior to Company will cause the record date for Company stockholders entitled to vote at the Stockholder Meeting as set forth information included in the preliminary Proxy Statement (such record date to be determined by Seller, subject to Buyer’s approval (such approval not to be unreasonably withheld)). Buyer shall cooperate with Seller 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 at the date hereof. Seller shall notify Buyer promptly time of the receipt of any comments from mailing or filing with the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall 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 amendments or supplement thereto willsupplements thereto, at the date of mailing to Seller stockholders and at the time of the Stockholder Meeting Special Meeting, not 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. IfEach 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 the Company shall 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, at any time prior correspondence and filings; provided, further, to receipt the extent the disclosure in such revised drafts of Stockholder Approvalthe Proxy Statement and related filings or such responses to the SEC and its staff relate to the Investors, any event occurs with respect 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 Seller or Buyer or any change occurs with respect to other cause the information to be included supplied by it expressly for inclusion in the Proxy Statement, which is required to be described in an amendment of, or a supplement to, at the time of the mailing of the Proxy Statement so that or any amendments or supplements thereto, and at the Proxy Statement shall time of the Special Meeting, not to contain an 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 respect to any information included or incorporated by reference in the Proxy Statement, other than the Party that discovers information supplied by such information shall promptly notify the other Party of such event and Seller shall promptly file, with Buyer’s cooperation, any necessary amendment Investor expressly for inclusion or supplement to incorporation by reference in 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 The Company shall mail 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 an opportunity to review and comment on such document or response (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.
(d) Seller shall, as soon as practicable following the date of this Agreement and subject to the SEC and the SEC staff completing their review (or no review) of the Proxy Statement as contemplated by Section 6.11(a) and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting of the holders of Common Stock determined as of the record date established for the Special Meeting a Proxy Statement (the “Stockholder Meeting”) for date the purpose of seeking the Stockholder Approval. Seller may not postpone Company elects to take such action 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 to take such supplemental or amended disclosure to be disseminated and reviewed by Seller’s stockholders prior to the Stockholder Meeting, (iv) to allow additional solicitation of votes in order to obtain the Stockholder 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the 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 Transactions). Without limiting the generality of the foregoing and except as provided in Section 6.02, unless this Agreement has been terminated in accordance with its 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 Selleraction, the Seller Board, Seller’s Representatives or stockholders“Proxy Date”).
Appears in 1 contract
Proxy Statement; Special Meeting. (a) As Parent shall prepare and, as soon as is reasonably practicable following after receipt by Parent from the date Company of this Agreement, Seller shall prepare (with Buyer’s reasonable cooperation) and, no later than ten (10) days or such all financial and other later date information relating to the Company as mutually agreed upon by Seller and Buyer in writingis necessary for its preparation, file with the SEC a proxy statement in preliminary form relating under the Exchange Act, and with all other applicable regulatory bodies, the Proxy Statement/Prospectus to be used for the Stockholder Meeting purpose of soliciting proxies from holders of Parent Common Stock (the “Proxy StatementParent Stockholders”) to vote in favor of (i) the adoption of this Agreement and the approval of the Merger (the “Merger Proposal”), (ii) 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 “Barkbox Inc.”, an increase in the number of authorized shares of Parent Common Stock to 500,000,000 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”) and related non-binding advisory proposals in accordance with the requirements of the SEC, (iv) approval of the issuance of more than 20% of the issued and outstanding shares of the Parent Common Stock pursuant to this Agreement and the PIPE Investment, pursuant to NYSE requirements (the “Stock Issuance Proposal”), (v) the adoption of the Parent Plan and an employee stock purchase plan under Section 423 of the Code (the “ESPP”) (the “Plan Proposals”), 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, including an adjournment proposal (together with the Merger Proposal, Director Proposal, Charter Amendments Proposals, the Stock Issuance Proposal and Plan Proposals, the “Stockholder Matters”) at a meeting of Parent Stockholders to be called and held for such purpose (the “Special Meeting”). Seller will cause Without the Proxy Statement to comply as to form in all material respects with the applicable provisions prior written consent of the Exchange Act and Company, the Stockholder Matters shall use its reasonable best efforts to cause be the Proxy Statement only matters (other than procedural matters) which Parent shall propose to be filed with acted on by the SEC 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 then mailed to stockholders of Seller as soon as reasonably practicable (and in any event within five (5) Business Days) outstanding after the earlier to occur of: Closing less the Excess Shares (ior such other number of shares as Parent and the Company may otherwise agree following the Agreement Date) if Seller does not receive comments from the SEC with respect shall be reserved for issuance pursuant to the preliminary Proxy Statement Parent Plan which shall include a customary evergreen provision. The ESPP shall provide that not less than 2% of the total number of shares of Parent Common Stock to be issued and does not reasonably believe that it will receive comments, outstanding after the eleventh Closing (11th) calendar day immediately or such other number of shares as Parent and the Company may otherwise agree following the date of filing of the preliminary Proxy Statement with the SEC and (iihereof) if Seller does receive comments from the SEC with respect shall be reserved for issuance pursuant to the preliminary Proxy Statement, clearance by ESPP which shall include a customary evergreen provision. The Company shall furnish to Parent all information concerning 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 (such record date to be determined by Seller, subject to Buyer’s approval (such approval not to be unreasonably withheld)). Buyer shall cooperate with Seller is necessary in connection with the preparation of the Proxy Statement, including providing to Seller any /Prospectus and all information regarding Buyer shall otherwise assist and cooperate with Parent as reasonably requested by Parent. The Company and its Affiliates as may counsel shall be given a reasonable opportunity to review, comment on and approve in writing 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 without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed. Parent shall also take all actions required to be disclosed therein satisfy the requirements of the Securities Act and the Exchange Act. Parent and the Company each shall use their reasonable best efforts to (w) cause the Registration Statement, when filed with the SEC, to comply in all material respects with all legal requirements applicable thereto, (x) respond as promptly as possible after the date hereof. Seller shall notify Buyer promptly of the receipt of any reasonably practicable to and resolve all comments received from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to concerning the Proxy Statement/Prospectus, (y) cause the Registration Statement or for additional information to be declared effective as promptly as practicable and shall provide Buyer with copies of all substantive correspondence between Seller or any of its representatives, on (z) keep the one hand, and Registration Statement effective as long as is necessary to consummate 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 SECMerger.
(b) Each of Seller and ▇▇▇▇▇ agrees that none As soon as reasonably practicable following the approval of the information supplied 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 (7) Business Days after the SEC Approval Date), Parent shall (i) no later than within three (3) Business Days following the date upon which the Form S-4 becomes effective, 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 (subject to postponement or adjournment in accordance with this Section 5.1(b)), 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, after consultation with the Company in good faith, be supplied by it 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 inclusion or incorporation by reference which the Special Meeting is scheduled, Parent reasonably determines that the Merger 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 or any amendment or supplement thereto willStatement/Prospectus, at the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Without limiting the foregoing, Parent represents and warrants that the Proxy Statement/Prospectus shall not, as of the date on which it is first distributed to Parent Stockholders, and as of the date of mailing to Seller stockholders and at the time of the Stockholder Meeting to be held in connection with the TransactionsSpecial Meeting, contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements thereinmade, in light of the circumstances under which they were made, not misleading. If, at misleading (provided that Parent shall not be responsible for the accuracy or completeness of any time prior information relating to receipt of Stockholder Approval, any event occurs with respect to Seller or Buyer the Company or any change occurs with respect to other information to be included furnished by the Company in writing for inclusion in the Proxy Statement, which is required /Prospectus). The Company represents and warrants that all financial and other information relating to be described the Company provided in an amendment of, or a supplement to, writing to Parent for inclusion in the Proxy Statement so that Statement/Prospectus shall not, as of the Proxy Statement shall not date it is first distributed to Parent Stockholders, and as of the date of the Special Meeting, contain an any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements thereinmade, in light of the circumstances under which they were made, not misleadingmisleading (provided that the Company shall not be responsible for the accuracy or completeness of any information relating to Parent or any other information furnished by Parent in writing specifically for inclusion in the Proxy Statement/Prospectus). No filing of, 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 or amendment or supplement to the Proxy Statement. Seller /Prospectus 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 an opportunity to review and comment on such document or response (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 made without the approval of Buyer, which Parent and the Company (such approval shall not to 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).
(d) Seller shallParent, as soon as practicable following acting through its board of directors, shall include in the date Proxy Statement/Prospectus the recommendation of its board of directors that the Parent Stockholders vote in favor of the adoption of this Agreement and subject the approval of the Merger and the other matters referred to in Section 5.1(a), and shall otherwise use reasonable best efforts to obtain approval of the matters referred to in Section 5.1(a). Neither Parent’s board of directors nor any committee or agent or representative thereof shall withdraw, proposed to withdraw, or modify in a manner adverse to the SEC and Company, the SEC staff completing their review (or no review) Parent board of director’s recommendation that the Parent Stockholders vote in favor of the Proxy Statement as contemplated by Section 6.11(a) and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting adoption of any of the holders of Common Stock (Stockholder Matters. No amendment or supplement to the “Stockholder Meeting”) for the purpose of seeking the Stockholder Approval. Seller may not postpone or adjourn the Stockholder Meeting Proxy Statement/Prospectus will be made by Parent without the prior written consent approval of ▇▇▇▇▇. Notwithstanding the foregoing, Seller may postpone or adjourn the Stockholder Meeting (on one or more occasions) (i) with the consent of BuyerCompany, which shall not be unreasonably withheld, conditioned conditioned, or delayed, (ii) for and Parent shall promptly transmit any such amendment or supplement to the absence of a quorumParent Stockholders, (iii) to allow reasonable additional if at any 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, (iv) to allow additional solicitation of votes Special Meeting there shall be discovered any information that should be set forth in order to obtain the Stockholder Approval an amendment 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 supplement 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the 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 Transactions). Without limiting the generality of the foregoing and except as provided in Section 6.02, unless this Agreement has been terminated in accordance with its 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 stockholdersStatement/Prospectus.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Northern Star Acquisition Corp.)
Proxy Statement; Special Meeting. (a) 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 proxy statement in preliminary form relating to the 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 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 Seller as soon as reasonably practicable (and in any event within five (5) Business Days) after the earlier to occur of: (i) if Seller does not receive comments from the SEC with respect to the preliminary Proxy Statement and does not reasonably believe that it will receive comments, the eleventh (11th) calendar day immediately following the date of filing of the preliminary Proxy Statement with the SEC and (ii) 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 (such record date to be determined by Seller, subject to Buyer’s approval (such approval not to be unreasonably withheld)). Buyer shall cooperate with Seller 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. 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 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▇▇▇ agrees ▇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 an opportunity to review and comment on such document or response (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.
(d) Seller shall, as soon as practicable following the date of this Agreement and subject to the SEC and the SEC staff completing their review (or no review) of the Proxy Statement as contemplated by Section 6.11(a) and as may be amended as provided in Section 6.11(b), duly call, give notice of, convene and hold a meeting of the holders of Common Stock (the “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, (iv) to allow additional solicitation of votes in order to obtain the Stockholder 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the 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 Transactions). Without limiting the generality of the foregoing and except as provided in Section 6.02, unless this Agreement has been terminated in accordance with its 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) As soon as is reasonably practicable following after the date hereof, Plastec shall deliver to GSME audited consolidated financial statements (including any related notes thereto) of this AgreementPlastec for the Fiscal Year ended April 30, Seller 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 (with Buyer’s reasonable cooperationthe “Special Meeting”), in favor of (i) andthe approval of the Merger and the transactions contemplated by this Agreement (the “GSME Shareholder Approval”), no later than ten (10ii) days or such other later date as the change of the name of GSME to a name mutually agreed upon by Seller GSME and Buyer Plastec, (iii) an increase in writingthe number of authorized ordinary GSME Shares to one hundred million (100,000,000) and (iv) an adjournment of the Special Meeting if, file 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 GSME’s Charter Documents. Such proxy materials shall be in the SEC form of a proxy statement in preliminary form relating to be used for the Stockholder purpose of soliciting such proxies from holders of GSME Shares for the matters to be acted upon at the Special Meeting (the “Proxy Statement”). Seller will cause the Proxy Statement Plastec shall furnish to comply GSME all information concerning Plastec as to form in all material respects with the applicable provisions of 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 Seller as soon as GSME may reasonably practicable (and in any event within five (5) Business Days) after the earlier to occur of: (i) if Seller does not receive comments from the SEC with respect to the preliminary Proxy Statement and does not reasonably believe that it will receive comments, the eleventh (11th) calendar day immediately following the date of filing of the preliminary Proxy Statement with the SEC and (ii) 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 (such record date to be determined by Seller, subject to Buyer’s approval (such approval not to be unreasonably withheld)). Buyer shall cooperate with Seller request in connection with the preparation of the Proxy Statement, including providing to Seller any and all information regarding Buyer . Plastec and its Affiliates as may counsel shall be required given a reasonable opportunity to be disclosed therein as promptly as possible after the date hereof. Seller shall notify Buyer promptly of the receipt of review and comment on such proxy materials prior to their distribution to GSME’s shareholders and GSME will not distribute any comments from the SEC documents containing information that Plastec has reasonably determined is incorrect or its staff misleading and of any request by the SEC or its staff for amendments or supplements to 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, notified GSME in each case, with respect to the Proxy Statement received from the SECwriting thereof.
(b) Each of Seller and ▇▇▇▇▇ agrees that none As soon as practicable following the preparation of the information supplied or to be supplied by it for inclusion or incorporation by reference in definitive Proxy Statement, GSME shall 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 any amendment or supplement thereto willadoption 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 GSME’s Charter Documents in the preparation, at 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, GSME shall ensure that the Proxy Statement does not, as of the date on which the Proxy Statement is first distributed to the shareholders of GSME, and as of the date of mailing to Seller stockholders and at the time of the Stockholder Meeting to be held in connection with the TransactionsSpecial 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 GSME shall not be responsible for the accuracy or completeness of any information relating to Plastec or any other information furnished by Plastec for inclusion in the Proxy Statement). Plastec represents and warrants that so long as GSME is in compliance with the terms of this Section 6.1, the information relating to Plastec supplied by Plastec for inclusion in the Proxy Statement will not, as of the date on which the Proxy Statement is first distributed to the shareholders of GSME 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 statements therein, in light of the circumstances under which they were made, statement therein not false or 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 an opportunity to review and comment on such document or response (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.
(d) Seller shallGSME, as soon as practicable following the date acting through its Board of this Agreement and subject to the SEC and the SEC staff completing their review (or no review) of the Proxy Statement as contemplated by Section 6.11(a) and as may be amended as provided in Section 6.11(b)Directors, duly call, give notice of, convene and hold a meeting of the holders of Common Stock (the “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, (iv) to allow additional solicitation of votes in order to obtain the Stockholder 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 Seller Board shall recommend to holders of Common Stock that they adopt this Agreement and shall include such recommendation and the Seller Determination in the Proxy Statement the unanimous recommendation of its Board of Directors that the holders of GSME Shares vote in favor of the approval of the transactions contemplated by this Agreement, and (y) Seller shall otherwise use reasonable best efforts to solicit obtain the Stockholder GSME Shareholder Approval. Seller shall not include in the Proxy Statement any proposal to vote upon or consider any Acquisition Proposal .
(other than the Transactions). Without limiting the generality e) Plastec and each of the foregoing Plastec Shareholders shall cooperate with GSME and except as provided use commercially reasonable efforts to provide all information reasonably requested by GSME in Section 6.02, unless this Agreement has been terminated in accordance connection with its terms, Seller shall submit any application or other filing made to secure listing for trading or quotation of GSME’s securities on 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 SellerNasdaq Stock Market, the Seller Board, Seller’s Representatives NYSE Amex LLC or stockholdersanother national securities exchange following the Effective Time.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (GSME Acquisition Partners I)