Proxy Statement; Stockholders Meeting. (a) The Company shall promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company. (b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement. (c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations. (e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting. (f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Expressjet Holdings Inc), Merger Agreement (Skywest Inc)
Proxy Statement; Stockholders Meeting. (a) The If the Company shall promptly prepare a proxy statement relating Stockholder Approval is required under the DGCL to effect the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC Merger, as soon as reasonably practicable after following the date hereofAcceptance Date, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate shall, with the assistance of Parent (not to promptly respond to any comments made by be unreasonably withheld, conditioned or delayed), prepare and file with the SEC and otherwise use reasonable best efforts to cause the Proxy Statement and shall respond to be mailed and resolve all SEC comments with respect to the Proxy Statement as promptly soon as practicable after filingreceipt thereof. Parent will provide Subject to applicable Laws, the Company and Parent (with any respect to itself and Merger Sub) each shall, upon request by the other, furnish the other with all information regarding Parent or Merger Sub that concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment reasonably necessary or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications advisable in connection with the Proxy Statement.
(c) Each of Parent . Parent, Merger Sub and the Company shall ensure that the each agrees promptly to correct any information provided by it for inclusion use in the Proxy Statement which shall have become false or misleading in any material respect. The Company shall provide Parent and each amendment Merger Sub with (in writing, if written), and shall consult with Parent regarding, any comments (written or supplement thereto, at oral) that may be received by the time of mailing thereof Company or its counsel from the SEC or its staff with respect to the Proxy Statement promptly after receipt thereof. Parent and at its counsel shall be given a reasonable opportunity to review any such written and oral comments and proposed responses before they are filed with the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit SEC. The Company shall give reasonable and good faith consideration to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleadingany comments made by Parent and its counsel.
(db) Neither Subject to the other provisions of this Agreement, if the Company Stockholder Approval is required under the DGCL to effect the Merger, as soon as reasonably practicable following the clearance of the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of SEC, the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company its Board of Directors, shall, shall (i) take all action necessary in accordance with applicable law the DGCL and the Company’s certificate its Certificate of incorporation Incorporation and bylaws, Bylaws to duly call, give notice of, convene and hold an annual or special a meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement obtaining the Company Stockholder Approval (such meeting or any adjournment or postponement thereof, the “Company Stockholder ApprovalMeeting”). The ; provided, that the record date for any such Company Board Meeting shall be after the Acceptance Date, and, if the Top-Up Option is exercised by Parent, after the date on which the closing of Directors shallthe purchase of the Top-Up Option Shares occurs pursuant to Section 1.3, (ii) subject to Section 5.3(b)5.3, recommend include in the Proxy Statement the Recommendation and (iii) subject to Section 5.3 of this Agreement, use commercially reasonable efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain Agreement. Once the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 Meeting has been called and subject to compliance with Section 5.3noticed, the Company, regardless of whether Company shall not postpone or adjourn the Company Board Meeting without the consent of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Parent. Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn shall not be required to hold the Company Meeting if this Agreement is terminated. Parent shall vote, or postpone the Stockholders Meeting (i) cause to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable lawbe voted, (ii) if, as all of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or held by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies Parent, Merger Sub and their respective affiliates in favor of the Agreementadoption and approval of this Agreement and the Merger in accordance with applicable law.
(c) Notwithstanding the foregoing, if a Short-Form Merger may be effected in accordance with Section 2.7 and Section 253 of the DGCL, the Company, Parent and Merger Sub shall take all necessary and appropriate action to cause the Merger to become effective on the dates specified in Section 2.2 without a Company Meeting, in accordance with Section 253 of the DGCL.
Appears in 2 contracts
Sources: Merger Agreement (Crane Co /De/), Merger Agreement (Merrimac Industries Inc)
Proxy Statement; Stockholders Meeting. (a) The As promptly as practicable after the date of this Agreement (but, in any event, no later than thirty (30) days after the date of this Agreement), the Company shall promptly prepare and file with the SEC a proxy statement in preliminary form relating to the Stockholders Meeting (such proxy statement, including any amendment or supplement thereto, the “Proxy Statement”) and shall file ). Subject to Section 4.02, the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and will include the Company shall cooperate Board Recommendation. The Company agrees, as to promptly respond to any comments made by the SEC itself and otherwise use reasonable best efforts to cause its Subsidiaries, that the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. As promptly as practicable after the date of the SEC thereunderthis Agreement, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional US Parent and Merger Sub will furnish all information by the SEC, or any other material communications concerning themselves and their Affiliates that is required to be included in connection with the Proxy Statement.
(c) Each of . The Company, Parent, US Parent and the Company shall ensure Merger Sub agree that none of the information provided supplied by it each of them or any of their respective Subsidiaries (as applicable) for inclusion or incorporation by reference in the Proxy Statement and each amendment or supplement theretowill, at the time date of mailing thereof and to stockholders of the Company or at the time of the Stockholders Meeting, does not include an contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(db) Neither If, at any time prior to the Stockholders Meeting, any information relating to the Company, Parent, US Parent or any of their respective Affiliates, officers or directors is discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement nor so that the Proxy Statement or the other filings shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement (including by incorporation by reference) thereto will describing such information shall be filed or with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. Notwithstanding anything to the contrary in this Section 5.01(b), prior to filing or mailing the Proxy Statement or making the other filings (or, in each case, any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company without shall (i) provide Parent a reasonable opportunity to review and comment on such document or response and shall consider such comments in good faith in accordance with Section 5.02(a) and (ii) promptly provide Parent with a copy of all such filings and responses made with the approval SEC. The Company will use its reasonable best efforts to have the Proxy Statement cleared by the SEC as promptly as reasonably practicable.
(c) The Company shall promptly notify Parent of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, receipt of all comments of the SEC with respect to documents filed the Proxy Statement and of any request by a Party that are incorporated by reference in the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to Parent copies of all correspondence between the Company and/or any of its Representatives and the SEC with respect to the Proxy Statement, this right of approval . The Company and Parent shall apply only each use its reasonable best efforts to promptly provide responses to the SEC with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement all comments received on the Proxy Statement (including by incorporation by reference) to effect such a Change in the SEC and the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect cause the definitive Proxy Statement to information relating to Parent be mailed as promptly as possible after the date the SEC staff advises that it has no further comments thereon or its business, financial condition or results of operationsthat the Company may commence mailing the Proxy Statement.
(ed) The Company, acting through the Company Board of Directors, shallwill take, in accordance with applicable law Law, the Company Certificate of Incorporation and the Company’s certificate of incorporation and bylawsCompany Bylaws, all action necessary to establish a record date for, duly call, give notice of, convene and hold an annual or special a meeting of its stockholders the holders of Shares (the “Stockholders Meeting”) as soon promptly as reasonably practicable following after the execution of this Agreement Agreement, for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain obtaining the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the CompanyRequisite Vote, regardless of whether the Company Board board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended directors of the Company Recommendation, will submit determines at any time that this Agreement for approval by is no longer advisable, recommends that the stockholders of the Company at such meeting.
(f) Notwithstanding anything to reject this Agreement or any other Change of Recommendation has occurred; provided, however, that the contrary contained Company, acting in this Agreementgood faith after consulting with its outside legal counsel, the Company may postpone or adjourn or postpone the Stockholders Meeting (i) with the consent of Parent (not to the extent it believes in good faith that such an adjournment be unreasonably withheld, conditioned or postponement is necessary delayed), (ii) to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the Company within a reasonable amount of time for which in advance of the Stockholders Meeting is originally scheduled consistent with SEC guidance and applicable Law, (as set forth in the Proxy Statement), there are insufficient shares of iii) if the Company Common Stock reasonably believes that (A) it is necessary and advisable to do so in order to solicit additional proxies in order to obtain the Company Requisite Vote, whether or not a quorum is present or (B) it will not have sufficient Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such meeting of the Stockholders Meeting (but in the case of clause (B), the date of the Stockholders Meeting is not to be postponed or adjourned more than an aggregate of fifteen (15) calendar days) or (iiiiv) as may be required by applicable Law. Subject to Section 4.02, the board of directors of the Company shall recommend the adoption of this Agreement and the approval of the transactions contemplated by this Agreement and shall use its reasonable best efforts to solicit additional from the stockholders of the Company proxies in favor of this Agreement and the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Transcanada Corp), Merger Agreement (Columbia Pipeline Group, Inc.)
Proxy Statement; Stockholders Meeting. (a) The If required under applicable Law in order to consummate the Merger, as promptly as practicable after Offeror purchases Company Common Stock pursuant to the Offer, the Company shall promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed sent to the stockholders of the Company relating to the meeting of the Company’s stockholders (the “Company Stockholders’ Meeting”) to be held to consider adoption of this Agreement. The Company shall use its reasonable best efforts to respond to any comments by the SEC or its staff to such Proxy Statement as promptly as practicable after filing. Parent will shall provide all information as may be reasonably requested by the Company in connection with any information regarding Parent or Merger Sub that may be required to prepare such action and file the preparation, filing and distribution of the Proxy Statement. As promptly as practicable after the SEC or its staff advises the Company that it has no further comments on the Proxy Statement, the Company shall cause the Proxy Statement to be mailed to the stockholders of the Company as of the record date for the Company Stockholders’ Meeting. No filing of, or amendment or supplement to, the Proxy Statement will be made by the Company (including documents incorporated by reference therein) without providing Parent a reasonable opportunity to review and comment thereon. If at any time prior to the mailing Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, should be discovered by the Proxy Statement any event occurs that is required to Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause so that the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does would not include an untrue statement any misstatement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading.
(d) Neither , the Proxy Statement nor any party that discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement (including describing such information shall be promptly filed with the SEC and, to the extent required by incorporation by reference) thereto will be filed or Law, disseminated to the stockholders of the Company. The Company without shall notify Parent promptly of the approval receipt of both Parent any comments from the SEC or the staff of the SEC and of any request by the Company, which approval shall not be unreasonably withheld, delayed SEC or conditioned; provided, however, that, with respect the staff of the SEC for amendments or supplements to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationsfor additional information.
(eb) The CompanyAs promptly as practicable following the purchase of Company Common Stock in the Offer, acting through if required by applicable Law in order to consummate the Merger, the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, shall take all actions necessary to duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement Company Stockholders’ Meeting solely for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain obtaining the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether At the Company Board of Directors has approvedStockholders’ Meeting, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares all of the Company Common Stock represented then owned by Parent or Offeror shall be voted to approve the Merger and this Agreement (either in person or by proxy) subject to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreementapplicable Law).
Appears in 2 contracts
Sources: Merger Agreement (Agrium Inc), Merger Agreement (Uap Holding Corp)
Proxy Statement; Stockholders Meeting. (a) The As soon as reasonably practicable following the date of this Agreement, the Company shall promptly prepare and file a proxy statement relating to for the Stockholders Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) seeking stockholder approval of the Merger and adoption of this Agreement; provided, that Parent, Merger Sub and their counsel shall file be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC as soon as reasonably practicable after the date hereofSEC, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall give reasonable and good faith consideration to all additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel. Subject to Section 5.3, the Company shall include in the Proxy Statement the Company Recommendation. The Company shall use its reasonable best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement, and Parent and Merger Sub shall cooperate with the Company in the preparation of the Proxy Statement and shall furnish all information concerning Parent and Merger Sub as is required to be included in the Proxy Statement.
(b) The Company shall provide Parent and Merger Sub and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its Representatives may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review any such written responses, and the Company shall give reasonable and good faith consideration to all additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel. The Company shall, after consultation with Parent and Merger Sub, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company, on the one hand, and Parent and Merger Sub, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect or as otherwise use reasonable best efforts required by applicable Laws, and the Company further agrees to take all steps necessary to cause the Proxy Statement Statement, as so corrected (if applicable), to be mailed as promptly as practicable after filing. Parent will provide filed with the Company with SEC and, if any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to such correction is made following the mailing of the Proxy Statement any event occurs that is required as provided in Section 6.1(c)(ii), mailed to be set forth holders of Shares, in an amendment or supplement each case as and to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the extent required by applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statementfederal securities Laws.
(c) Each As promptly as reasonably practicable after the date of Parent and this Agreement, the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.will:
(di) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law Laws and the Company’s certificate of incorporation and bylawsCompany Governing Documents, duly set a record date for, call, give notice of, convene and hold an annual or a special meeting of its stockholders the Company Stockholders (including any adjournments and postponements thereof, the “Stockholders Special Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote considering and taking action upon this Agreement (with the “Company Stockholder Approval”record date and meeting date set in consultation with Merger Sub). The Company Board of Directors shall, subject to Section 5.3(b), recommend ;
(ii) cause the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the definitive Proxy Statement and to be mailed to the Company Stockholders; and
(iii) use its reasonable best efforts to obtain solicit from the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the adoption of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Gentiva Health Services Inc), Merger Agreement (Odyssey Healthcare Inc)
Proxy Statement; Stockholders Meeting. (a) The Company shall promptly prepare a proxy statement relating Unless the Merger is to be consummated in accordance with Section 253 of the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC DGCL as contemplated by Section 2.9, as soon as reasonably practicable after following consummation of the date hereofOffer and the expiration of any Subsequent Offering Period, and in any event not later than 30 days after the date hereof, Company and Parent shall cooperate with such preparation and filing. Parent prepare and the Company shall cooperate file with the SEC the Proxy Statement, and the Company shall use commercially reasonable efforts to respond as promptly respond as practicable to any comments made by of the SEC with respect thereto and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without as promptly as practicable following consummation of the approval of both Parent Offer and the Companyexpiration of any Subsequent Offering Period. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or the staff of the SEC, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect any request from the SEC or the staff of the SEC for amendments or supplements to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right and shall provide Parent with copies of approval shall apply only with respect to information relating to all correspondence between the Company and its Representatives, on the one hand, and the SEC and the staff of the SEC, on the other Party hand. Notwithstanding the foregoing, prior to filing or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement mailing the Proxy Statement (including by incorporation by referenceor any amendment or supplement thereto) or responding to effect such a Change in any comments of the SEC or the staff of the SEC with respect thereto, the Company Recommendation, (i) shall provide Parent an opportunity to review and in comment on such event, document or response and (ii) shall give due consideration to all comments reasonably proposed by Parent’s right of approval ; provided that Parent shall apply only with respect use commercially reasonable efforts to information relating provide or cause to be provided its comments to the Company as promptly as practicable after the Proxy Statement is transmitted to Parent or for its business, financial condition or results of operationsreview.
(eb) The Company, acting through Unless the Company Board of Directors, shall, Merger is to be consummated in accordance with applicable law Section 253 of the DGCL as contemplated by Section 2.9, the Company shall, as soon as practicable following the consummation of the Offer (and the Company’s certificate expiration of incorporation any Subsequent Offering Period) and bylawsreceipt of confirmation (either express or through the lapse of time) that the SEC has no comments or no further comments to the Proxy Statement, establish a record date for, duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement Stockholders’ Meeting solely for the purpose of adopting by requisite vote this Agreement (obtaining the “Company Stockholder Approval”). The Subject to Section 5.2(d) of this Agreement, the Company Board of Directors shall, subject to Section 5.3(b)(i) through the Company Board, recommend the to its stockholders adoption of this Agreement at Agreement, unless the Stockholders Meeting Merger is to be consummated in accordance with Section 253 of the DGCL as contemplated by Section 2.9, (the “Company Recommendation”), ii) include such recommendation in the Proxy Statement and (iii) use its commercially reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by solicit from the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the approval and adoption of this Agreement.
(c) Unless the Merger is to be consummated in accordance with Section 253 of the DGCL as contemplated by Section 2.9, Holding and Merger Sub shall, and Holding shall cause Merger Sub, and any of its Affiliates that own Shares, to, vote all Shares owned by Holding or Merger Sub or their respective Affiliates (including all Shares purchased pursuant to the Offer, including Shares purchased in any Subsequent Offering Period), or with respect to which Holding, Merger Sub or any of their respective Affiliates otherwise has, directly or indirectly, sole voting power, in favor of adoption of this Agreement and in approval of the Merger and against any proposal that is inconsistent herewith. Neither Holding nor Merger Sub shall transfer, sell or otherwise dispose of any of such Shares prior to the Effective Time (except transfers to controlled Affiliates).
Appears in 2 contracts
Sources: Merger Agreement (Osi Pharmaceuticals Inc), Merger Agreement (Astellas Pharma Inc.)
Proxy Statement; Stockholders Meeting. (a) The Promptly following the execution and delivery of this Agreement, the Company shall take all action necessary to call a meeting of its stockholders (together with any adjournments or postponements thereof, the "Stockholders Meeting") for the purpose of seeking approval of the Company's stockholders (the "Stockholder Approvals") for the issuance and sale to the Investors of the Securities and any other actions necessary to meet the Second Closing Conditions (the "Proposal"). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement relating to statement(as amended or supplemented, the "Proxy Statement") and form of proxy) for use at the Stockholders Meeting (the “Proxy Statement”) and, after receiving and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond responding to any comments made by of the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as thereon, shall promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of mail such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same proxy materials to the stockholders of the Company.
. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in such proxy materials; provided that no Investor shall be obliged to furnish any such information if there has been no change in such Investor's beneficial ownership (bas defined under the Exchange Act) of Common Stock since the date of this Agreement. The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement and regulations any form of proxy to be sent to the stockholders of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent Stockholders Meeting, and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each shall not, on the date the Proxy Statement (or any amendment thereof or supplement thereto, at the time of mailing thereof and ) is first mailed to stockholders or at the time of the Stockholders Meeting, does not include an untrue contain any statement which, at the time and in the light of a the circumstances under which it is made, is false or misleading with respect to any material fact fact, or omit which omits to state a any material fact necessary in order to make the statements therein, therein not false or misleading or necessary to correct any statement in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, earlier communication with respect to documents filed by the solicitation of a Party proxy for the Stockholders Meeting or the subject matter thereof which has become false or misleading. If the Company should discover at any time prior to the Second Closing any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that are incorporated by reference is required to be set forth in a supplement or amendment to the Proxy Statement, this right of approval shall apply only with respect to information relating in addition to the other Party or its businessCompany's obligations under the Exchange Act, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement will promptly inform its stockholders and the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationsInvestors thereof.
(eb) The Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company's Board of Directors after consultation with the Company's outside counsel), acting through the Company's Board of Directors shall recommend to the Company's stockholders (and not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal and shall cause the Company to take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the Stockholder Approvals. Whether or not the Company's Board of DirectorsDirectors determines at any time after the date hereof that, shalldue to its fiduciary duties, it must revoke or amend its recommendation to the Company's stockholders, the Company is required to, and will take, in accordance with applicable law and the Company’s certificate its Certificate of incorporation Incorporation and bylawsBylaws, duly call, give notice of, all action necessary to convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting as promptly as practicable to consider and vote upon the approval of the Proposal.
(c) In the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, event that the Company, regardless of whether the Company 's Board of Directors has approvedwithdrawn or modified its recommendation to stockholders pursuant to the provisions of Section 5.4(b), endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended upon termination of the Agreement in accordance with its terms the Company Recommendationshall pay to the Investors, will submit this Agreement for approval pro rata based on their pro rata share of the aggregate purchase price, a breakup fee equal to the aggregate amount invested by the stockholders of Investors at the Company at such meetingFirst Closing in cash.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreement.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Company Within ten (10) days following the date hereof, the Seller shall promptly prepare and cause to be filed with the SEC in preliminary form a proxy statement relating to the Stockholders Stockholders’ Meeting (together with any amendments or supplements thereto, the “Proxy Statement”) and shall file the ). The Proxy Statement shall include the Seller Board Recommendation with respect to this Agreement. The Seller shall promptly notify the Buyer and Parent upon the receipt of any comments from the SEC as soon as reasonably practicable after (or the date hereof, and in staff of the SEC) or any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any comments made by request from the SEC and otherwise use reasonable best efforts to cause (or the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing staff of the Proxy Statement any event occurs that is required to be set forth in an amendment SEC) for amendments or supplement supplements to the Proxy Statement, and shall provide the Buyer and Parent with copies of all correspondence between the Seller and its representatives, on the one hand, and the SEC (or the Companystaff of the SEC), as applicable, will promptly inform on the other hand. Each of such occurrence and cooperate in preparing and filing such amendment or supplement with the parties hereto shall use their reasonable best efforts to respond as promptly as reasonably practicable to any comments of the SEC and, if required, in mailing (or the same staff of the SEC) with respect to the stockholders of the Company.
(b) Proxy Statement. The Company will cause Seller shall use its reasonable best efforts so that the Proxy Statement to will comply as to form in all material respects with the applicable provisions of the Securities Exchange Act and the rules and regulations promulgated thereunder. Prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC thereunder, as well as (or the regulations staff of the NYSESEC) with respect thereto, the Seller shall provide the Buyer and Parent a reasonable opportunity to review and to propose comments on such document or response (which comments shall be provided promptly and be reasonably considered).
(b) Each of the Buyer and Parent shall furnish to the Seller all information concerning the Buyer and Parent as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information may be reasonably requested by the SEC, or any other material communications Seller in connection with the Proxy Statement.
, including such information that is required by the Securities Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Proxy Statement, and shall otherwise assist and cooperate with the Seller in the preparation of the Proxy Statement and the resolution of comments from the SEC (c) or the staff of the SEC). Each of the Buyer and Parent and will, upon request of the Company shall ensure that Seller, confirm and/or supplement the information provided relating to the Buyer or Parent, as the case may be, supplied by it for inclusion in the Proxy Statement and each amendment or supplement theretoStatement, such that at the time of the mailing thereof of the Proxy Statement or any amendments or supplements thereto, and at the time of the Stockholders Stockholders’ Meeting, does not include an such information shall not, to the Knowledge of Buyer or Parent, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(dc) Neither The Seller shall, as promptly as practicable (and in any event within five (5) Business Days following the Proxy Statement nor any amendment or supplement Clearance Date), (including by incorporation by referencex) thereto will be filed or disseminated to establish a record date for and give notice of a meeting of its stockholders, for the stockholders purpose of the Company without voting upon the approval of both Parent this Agreement (including any adjournment or postponement thereof, the “Stockholders’ Meeting”) and (y) mail to the Companyholders of the Seller’s common stock as of the record date established for the Stockholders’ Meeting (such date, which approval the “Proxy Date”) a Proxy Statement. The Seller shall not be unreasonably withheldduly call, delayed or conditionedconvene and hold the Stockholders’ Meeting as promptly as reasonably practicable after the Proxy Date; provided, however, thatthat the Seller, in its reasonable judgment and following consultation with respect to documents filed by a Party that are incorporated by reference in the Proxy StatementBuyer and Parent, this right shall determine the length of approval shall apply only with respect to information relating to any period for the other Party or solicitation of proxies from its businessstockholders and, financial condition or results of operations; and provided, furtherfurthermore, that the CompanySeller may postpone, in connection with a Change in recess or adjourn the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Stockholders’ Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting : (i) to with the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to consent of the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable lawBuyer, (ii) iffor the absence of a quorum, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies for the purpose of obtaining the Requisite Stockholder Approval or (iv) to allow reasonable additional time for the filing and distribution of any supplemental or amended disclosure that the Seller’s board of directors has determined in good faith (after consultation with its outside legal counsel) is necessary or advisable under applicable laws and for such supplemental or amended disclosure to be disseminated to and reviewed by the Seller’s stockholders prior to the Stockholders’ Meeting. Notwithstanding anything to the contrary in this paragraph 4.10(c), in no event shall the Stockholders’ Meeting take place after December 15, 2016 without the Buyer’s express written consent. Once the Seller has established a record date for the Stockholders’ Meeting, the Seller shall not change such record date or establish a different record date for the Stockholders’ Meeting without the prior written consent of the Buyer, unless required to do so by applicable law or the Seller’s bylaws. Unless the Seller’s board of directors determined in good faith that the failure to change its recommendation would reasonably be expected to breach its duties under applicable law (“Change in Recommendation”), the Seller shall use its reasonable best efforts to solicit proxies in favor of the Agreementapproval of this Agreement and shall ensure that all proxies solicited in connection with the Stockholders’ Meeting are solicited in compliance with all applicable laws and all rules of NASDAQ.
(d) If at any time prior to the Closing Date any event or circumstance relating to the Seller, any of the Seller’s Subsidiaries, the Buyer or Parent, or their respective officers or directors, is discovered by the Seller or the Buyer, respectively, which, pursuant to the Securities Exchange Act, should be set forth in an amendment or a supplement to the Proxy Statement, such party shall promptly inform the other. Each of the Buyer and the Seller agrees to correct any information provided by it for use in the Proxy Statement, which shall have become false or misleading.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The As promptly as practicable following the date of this Agreement, the Company shall promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereofProxy Statement, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate use all reasonable efforts to respond as promptly respond as practicable to any comments made by of the SEC with respect thereto and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed to the stockholders of the Company as promptly as practicable after filingfollowing the date of this Agreement. The Company shall promptly notify Parent will upon the receipt of any comments from the SEC or the staff of the SEC or any request from the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement and shall provide Parent with copies of all correspondence between the Company with any information regarding Parent or Merger Sub that may be required and its Representatives, on the one hand, and the SEC and the staff of the SEC, on the other hand, relating to prepare and file the Proxy Statement. If at any time Notwithstanding the foregoing, prior to the filing or mailing of the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC or the staff of the SEC with respect thereto, the Company (i) shall provide Parent an opportunity to review and comment on such document or response and (ii) shall include in such document or response all comments reasonably proposed by Parent Whenever any event occurs that which is required to be set forth in an amendment or supplement to the Proxy Statement, Parent the Company or the CompanyParent, as applicablethe case may be, will promptly inform the other of such occurrence and cooperate in preparing and filing with the SEC and/or mailing to stockholders of the Company such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Companysupplement.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereundershall, as well soon as practicable following the regulations date of the NYSEthis Agreement, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of establish a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylawsrecord date for, duly call, give notice of, convene and hold an annual or special a meeting of its stockholders (the “Stockholders "Stockholders' Meeting”") as soon as reasonably practicable following execution of this Agreement solely for the purpose of adopting by requisite vote this Agreement (obtaining the “Company Stockholder Approval”). The Subject to Section 6.3 below, the Company shall, through its Board of Directors shall, subject to Section 5.3(b)Directors, recommend that the Company's stockholders vote in favor of the adoption and approval of this Agreement at and approval of the Stockholders Meeting (the “Company Recommendation”), Merger and shall include such recommendation in the Proxy Statement and Statement. Subject to Section 6.3(d), the Company will use its all reasonable best efforts to obtain solicit from its stockholders proxies in favor of the Company adoption and approval of this Agreement and approval of the Merger, and will take all other action necessary or advisable under applicable Law to secure Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Stockholders' Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required necessary supplement or amendment to the Proxy Statement or other disclosure is provided to its stockholders in advance of a vote on the Company’s stockholders to satisfy the requirements of applicable lawMerger and this Agreement or, (ii) if, if as of the time for which the Stockholders Stockholders' Meeting is originally scheduled (as set forth in the Proxy Statement), ) there are insufficient shares of the Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of such meeting or (iii) to solicit additional proxies in favor of the AgreementStockholders' Meeting.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (ai) The Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the "Stockholders Meeting"), which shall occur promptly following the Company’s next annual stockholders meeting scheduled for June 23, 2005, but not later than September 30, 2005 (the "Stockholders Meeting Deadline"), for the purpose of seeking approval of the Company's stockholders to certain actions including, without limitation, the amendment to the Company’s Certificate of Incorporation to increase the authorized number of shares of Common Stock to not less than 100,000,000 (the “Proposal”). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement relating to and form of proxy) for use at the Stockholders Meeting (the “Proxy Statement”) and, after receiving and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond responding to any comments made by of the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as thereon, shall promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of mail such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same proxy materials to the stockholders of the Company.
(b) . Each Purchaser shall promptly furnish in writing to the Company such information relating to such Purchaser and its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement. The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the "Proxy Statement") and regulations any form of proxy to be sent to the stockholders of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent Stockholders Meeting, and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto, at the time of mailing thereof and ) is first mailed to stockholders or at the time of the Stockholders Meeting, does not include an contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements thereinmade therein not false or misleading, or omit to state any material fact necessary to correct any statement in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, earlier communication with respect to documents filed by the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a Party that are incorporated by reference in supplement or amendment to the Proxy Statement, this right of approval shall apply only with respect to information relating in addition to the other Party or its businessCompany's obligations under the Exchange Act, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement will promptly inform the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationsPurchasers thereof.
(eii) The Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company's Board of Directors after consultation with the Company's outside counsel), acting through the Company's Board of Directors shall recommend to the Company's stockholders (and, subject to their fiduciary obligations, not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal and shall cause the Company to take all commercially reasonable action to solicit the approval of the stockholders for the Proposal. Whether or not the Company's Board of DirectorsDirectors determines at any time after the date hereof that, shalldue to its fiduciary duties, it must revoke or amend its recommendation to the Company's stockholders, the Company shall be required to, and will take, in accordance with applicable law and the Company’s certificate its Certificate of incorporation Incorporation and bylawsBy-laws, duly call, give notice of, all action necessary to convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”)as promptly as practicable, include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone but no later than the Stockholders Meeting (i) Deadline, to consider and vote upon the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as approval of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the AgreementProposal.
Appears in 1 contract
Sources: Series B Convertible Preferred Stock Purchase Agreement (Miravant Medical Technologies)
Proxy Statement; Stockholders Meeting. (a) The Company shall promptly prepare a proxy statement relating to Promptly following the Stockholders Meeting (the “Proxy Statement”) execution and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing delivery of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC andthis Agreement, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of take all action necessary to call a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement seeking approval of the Company’s stockholders for the issuance and sale to the Investors of the Securities (the “Company Stockholder ApprovalProposal”). The In connection therewith, the Company Board will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement proxy) for use at the Stockholders Meeting (and, after receiving and promptly responding to any comments of the “SEC thereon, shall promptly mail such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company Recommendation”), include such recommendation information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement and use its reasonable best efforts to obtain the Statement. The Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance will comply with Section 7.1 14(a) of the 1934 Act and subject the rules promulgated thereunder in relation to compliance with Section 5.3any proxy statement (as amended or supplemented, the Company, regardless “Proxy Statement”) and any form of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date of the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at such meeting.
(f) Notwithstanding anything the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the contrary contained in this Agreement, the Company may adjourn solicitation of proxies or postpone the Stockholders Meeting (i) which has become false or misleading. If the Company should discover at any time prior to the extent it believes Closing, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in good faith that such an adjournment or postponement is necessary to ensure that any required a supplement or amendment to the Proxy Statement or other disclosure is provided Statement, in addition to the Company’s obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders to satisfy (and not revoke or amend such recommendation) that the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies stockholders vote in favor of the AgreementProposal and shall cause the Company to take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal. Whether or not the Company’s Board of Directors determines at any time after the date hereof that, due to its fiduciary duties, it must revoke or amend its recommendation to the Company’s stockholders, the Company shall be required to, and will take, in accordance with applicable law and its Certificate of Incorporation and Bylaws, all action necessary to convene the Stockholders Meeting as promptly as practicable to consider and vote upon the approval of the Proposal.
Appears in 1 contract
Sources: Purchase Agreement (First Virtual Communications Inc)
Proxy Statement; Stockholders Meeting. (a) The Promptly following the execution and delivery of this Agreement, the Company shall take all action necessary to call a meeting of its stockholders (the "Stockholders Meeting") for the purpose of seeking approval of the Company's stockholders for (i) the issuance and sale to the Investors of the Securities, and (ii) the Reverse Split (the "Proposals"). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement relating to and form of proxy) for use at the Stockholders Meeting (the “Proxy Statement”) and, after receiving and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond responding to any comments made by of the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as thereon, shall promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of mail such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same proxy materials to the stockholders of the Company.
(b) The . Each Investor shall promptly furnish in writing to the Company will cause such information relating to such Investor and its investment in the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well Company as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it may reasonably request for inclusion in the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the "Proxy Statement") and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement and each shall not, on the date of the Proxy Statement (or any amendment thereof or supplement thereto, at the time of mailing thereof and ) is first mailed to stockholders or at the time of the Stockholders Meeting, does not include an contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements thereinmade therein not false or misleading, or omit to state any material fact necessary to correct any statement in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, earlier communication with respect to documents filed by the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Closing, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a Party that are incorporated by reference in supplement or amendment to the Proxy Statement, this right of approval shall apply only with respect to information relating in addition to the other Party or its businessCompany's obligations under the 1934 Act, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement will promptly inform the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationsInvestors thereof.
(eb) The Company, acting through 's Board of Directors shall recommend to the Company's stockholders (and not revoke or amend such recommendation) that the stockholders vote in favor of the Proposals and shall cause the Company to take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposals. Notwithstanding the foregoing, the Company's Board of DirectorsDirectors is permitted to withdraw or modify its recommendation if required in order to comply with the fiduciary duties of the Company's Board of Directors under applicable law as determined by such Board of Directors in good faith after consultation with the Company's outside counsel. Whether or not the Company's Board of Directors determines at any time after the date hereof that, shalldue to its fiduciary duties, it must revoke or amend its recommendation to the Company's stockholders, the Company shall be required to, and will take, in accordance with applicable law and the Company’s certificate its Certificate of incorporation Incorporation and bylawsBylaws, duly call, give notice of, all action necessary to convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (as promptly as practicable to consider and vote upon the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meetingProposals.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Starbase Corp)
Proxy Statement; Stockholders Meeting. (a) The Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the "Stockholders Meeting"), which shall occur not later than May 15, 2007 (the "Stockholders Meeting Deadline"), for the purpose of seeking approval of the Company's stockholders for (i) the issuance and sale to the Investors of the Remaining Securities and (ii) the full adjustment of the Warrants in accordance with the provisions of Section 8(f)(8) thereof (collectively, the "Proposals"). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement relating to and form of proxy) for use at the Stockholders Meeting (the “Proxy Statement”) and, after receiving and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond responding to any comments made by of the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as thereon, shall promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of mail such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same proxy materials to the stockholders of the Company.
(b) The . Each Investor shall promptly furnish in writing to the Company will cause such information relating to such Investor and its investment in the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well Company as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it may reasonably request for inclusion in the Proxy Statement, which information shall not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the "Proxy Statement") and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement and each shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto, at the time of mailing thereof and ) is first mailed to stockholders or at the time of the Stockholders Meeting, does not include an contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements thereinmade therein not false or misleading, or omit to state any material fact necessary to correct any statement in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, earlier communication with respect to documents filed by a Party that are incorporated by reference in the Proxy Statementsolicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, this right of approval shall apply only with respect to information any event relating to the other Party Company or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, duly call, give notice of, convene and hold an annual or special meeting any of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution Subsidiaries or any of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shalltheir respective affiliates, subject officers or directors that is required to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation be set forth in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required a supplement or amendment to the Proxy Statement or other disclosure is provided Statement, in addition to the Company’s stockholders 's obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to satisfy the requirements of their fiduciary obligations under applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled law (as set forth determined in good faith by the Proxy StatementCompany's Board of Directors after consultation with the Company's outside counsel), there are insufficient shares the Company's Board of Directors shall recommend to the Company Common Stock represented Company's stockholders that the stockholders (either in person and, subject to their fiduciary obligations, not revoke or by proxyamend such recommendation) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies vote in favor of the AgreementProposals (the "Company Board Recommendation") and shall cause the Company to take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposals unless the Board of Directors shall have modified, amended or withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. Whether or not the Company's Board of Directors determines at any time after the date hereof that, due to its fiduciary duties, it must revoke or amend its recommendations to the Company's stockholders, the Company shall take all commercially reasonable action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, to consider and vote upon the approval of the Proposals.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Company As promptly as practicable after the Closing Date, Parent shall promptly prepare and file with the SEC a proxy statement relating to the Parent Stockholders Meeting to be held in connection with the Conversion Proposal and Charter Amendment Proposal (together with any amendments thereof or supplements thereto, the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and ). Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any comments made by the SEC and otherwise use its reasonable best efforts to (i) cause the Proxy Statement to be mailed as comply with the applicable rules and regulations promulgated by the SEC and (ii) respond promptly as practicable after filing. Parent will provide the Company with to any information regarding Parent comments or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing requests of the Proxy Statement any event occurs that is required to be set forth in an amendment SEC or supplement its staff relating to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause Parent covenants and agrees that the Proxy Statement (and the letter to stockholders, notice of meeting and form of proxy included therewith) will (i) comply as to form in all material respects with the requirements of applicable provisions of the Exchange Act U.S. federal securities laws and the rules DGCL, and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of (ii) will not contain any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(dc) Neither Parent shall use commercially reasonable efforts to cause the Proxy Statement nor any amendment to be mailed to Parent’s stockholders as promptly as practicable after the Proxy Statement has been filed with the SEC and either (i) the SEC has indicated that it does not intend to review the Proxy Statement or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders that its review of the Company Proxy Statement has been completed or (ii) at least ten (10) days shall have passed since the Proxy Statement was filed with the SEC without receiving any correspondence from the approval of both Parent and the CompanySEC commenting upon, which approval shall not be unreasonably withheldor indicating that it intends to review, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right all in compliance with applicable U.S. federal securities laws and the DGCL. If Parent, First Merger Sub, Second Merger Sub or the Company become aware of approval shall apply only with respect to any event or information relating that, pursuant to the other Party Securities Act or its businessthe Exchange Act, financial condition or results of operations; and provided, further, that the Company, should be disclosed in connection with a Change in the Company Recommendation, may amend an amendment or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement Statement, as the case may be, then such party, as the case may be, shall promptly inform the other parties thereof and shall cooperate with such other parties in Parent filing such amendment or other disclosure is provided supplement with the SEC and, if appropriate, in mailing such amendment or supplement to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the AgreementParent stockholders.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The As promptly as reasonably practicable following the date hereof, the Company shall promptly prepare shall, with the assistance of Parent, prepare, and the Company shall, no later than 15 Business Days after the date of this Agreement, file with the SEC, a proxy statement relating to the Stockholders Meeting adoption of this Agreement by the stockholders of the Company (as amended or supplemented from time to time, the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing). Parent and the Company shall cooperate with one another in connection with the preparation of the Proxy Statement and Parent shall have the right to promptly respond review and to any propose comments made to the Proxy Statement (and the Company shall in good faith consider such comments reasonably proposed by Parent for inclusion therein). Parent shall furnish all information concerning Parent and Merger Sub as the Company may reasonably request in connection with the preparation of the Proxy Statement. Parent and the Company shall each use commercially reasonable efforts to have the Proxy Statement cleared by the SEC and otherwise as promptly as reasonably practicable after such filing. The Company will use reasonable best efforts to cause the Proxy Statement to be mailed to the stockholders of the Company as promptly as reasonably practicable after filingthe Proxy Statement is cleared by the SEC (but not later than five Business Days after such clearance).
(b) Each of Parent and the Company shall as promptly as reasonably practicable notify the other of (i) the receipt of any comments from the SEC and all other written correspondence and oral communications with the SEC relating to the Proxy Statement and (ii) any request by the SEC for any amendment or supplement to the Proxy Statement or for additional information with respect thereto. Parent will provide All filings by the Company with any information regarding Parent or the SEC and all mailings to the stockholders of the Company in connection with the Merger Sub that may be required to prepare and file the other transactions contemplated hereby, including the Proxy Statement. Statement and any amendment or supplement thereto, shall be subject to the reasonable prior review and comment of Parent.
(c) If at any time prior to the mailing Effective Time any information relating to the Company, Parent or Merger Sub, or any of their respective Affiliates, directors or officers, is discovered by the Proxy Statement any event occurs that is required to Company, Parent or Merger Sub, which should be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause Statement so that the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does would not include an untrue statement any misstatement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither , the Proxy Statement nor any party which discovers such information shall promptly notify the other parties and an appropriate amendment or supplement (including describing such information shall be promptly filed with the SEC and, to the extent required by incorporation by reference) thereto will be filed or Applicable Law, disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(ed) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s its certificate of incorporation and bylawsbylaws and Applicable Law, promptly following the date of this Agreement, for the purposes of obtaining the Stockholder Approval, duly set a record date and duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon promptly as reasonably practicable following execution the date upon which the Proxy Statement is cleared by the SEC (with the record date and meeting date to be set by the Board in consultation with Parent regarding such dates), a meeting of this Agreement the stockholders of the Company (the “Stockholder Meeting”) for the purpose of adopting by requisite vote this Agreement (seeking the “Company Stockholder Approval”). The Company Board of Directors shallmay postpone, subject recess or adjourn the Stockholder Meeting (i) for one time only not to Section 5.3(bexceed ten (10) calendar days (unless Parent otherwise agrees in writing), recommend if the adoption Company reasonably believes that it will be unable to obtain a quorum of this Agreement its stockholders at the Stockholders Stockholder Meeting or it will not receive proxies sufficient to obtain the Stockholder Approval or (ii) to allow up to ten (10) calendar days of additional time (commencing, if there has occurred any Adverse Recommendation Change, on the “Company Recommendation”)date of such Adverse Recommendation Change has been made (for the avoidance of doubt, include such recommendation after the expiration of any time periods contemplated in the Proxy Statement definition thereof)) for the filing and distribution of any supplemental or amended disclosure which the Company Board has determined in good faith is necessary under Applicable Law.
(e) Subject to the ability of the Board to make an Adverse Recommendation Change in accordance with Section 7.03, the Company shall use its reasonable best efforts to obtain solicit the Stockholder Approval, and the Board shall make the Company Stockholder Approval. Notwithstanding anything in Recommendation with respect to the adoption of this Agreement to and the contraryapproval of the transactions contemplated hereby, unless this Agreement is terminated in accordance with Section 7.1 including the Merger, and subject to compliance with Section 5.3, the Company, regardless of whether shall include both the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders Recommendation as well as a description of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth Board Actions in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreement.
Appears in 1 contract
Sources: Merger Agreement (PharMerica CORP)
Proxy Statement; Stockholders Meeting. (a) The Promptly following the execution and delivery of this Agreement, the Company shall take all action necessary to call a meeting of its stockholders (the "Stockholders Meeting") for the purpose of seeking approval of the Company's stockholders for the issuance and sale of the Shares to the Investors (the "Proposal"). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement relating to and form of proxy) for use at the Stockholders Meeting (the “Proxy Statement”) and, after receiving and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond responding to any comments made by of the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as thereon, shall promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of mail such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same proxy materials to the stockholders of the Company.
(b) The . Each Investor shall promptly furnish in writing to the Company will cause such information relating to such Investor and its investment in the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well Company as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it may reasonably request for inclusion in the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the "Proxy Statement") and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement and each shall not, on the date of the Proxy Statement (or any amendment thereof or supplement thereto, at the time of mailing thereof and ) is first mailed to shareholders or at the time of the Stockholders Meeting, does not include an contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements thereinmade therein not false or misleading, or omit to state any material fact necessary to correct any statement in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, earlier communication with respect to documents filed by the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover, at any time prior to the Closing, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a Party that are incorporated by reference in supplement or amendment to the Proxy Statement, this right of approval shall apply only with respect to information relating in addition to the other Party or its businessCompany's obligations under the 1934 Act, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement will promptly inform the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationsInvestors thereof.
(eb) The Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company's Board of Directors after consultation with the Company's outside counsel), acting through the Company's Board of Directors shall recommend to the Company's stockholders (and not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal and shall cause the Company to take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal. Whether or not the Company's Board of DirectorsDirectors determines at any time after the date hereof that, shalldue to its fiduciary duties, it must revoke or amend its recommendation to the Company's stockholders, the Company is required to, and will take, in accordance with applicable law and the Company’s certificate its Certificate of incorporation Incorporation and bylawsBylaws, duly call, give notice of, all action necessary to convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (as promptly as practicable to consider and vote upon the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meetingProposal.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Artisoft Inc)
Proxy Statement; Stockholders Meeting. (a) The As soon as reasonably practicable following the date of this Agreement (but in no event later than ten (10) days following the date of this Agreement), the Company shall promptly will prepare and file with the SEC a proxy statement relating to the Stockholders Meeting (together with any amendments or supplements thereto, the “Proxy Statement”) in connection with the Merger, and shall the parties will file, if necessary, any other statement or schedule relating to this Agreement and the transactions contemplated hereby; provided, however, that the Company will not be in breach of this Section 5.6 if the Company fails to file the Proxy Statement solely due to a failure by Parent to provide any information reasonably necessary for the preparation of the Proxy Statement. The Proxy Statement will include the recommendation of the Special Committee and the Board in favor of this Agreement and the Merger (the “Company Recommendation”); provided that the Special Committee and the Board may withdraw the Company Recommendation pursuant to Section 5.2(h). Each of the Company, Parent and Acquisition Subsidiary will use commercially reasonable efforts to furnish the information required to be included by the SEC in the Proxy Statement and any such statement or schedule. As promptly as practicable after comments are received from the SEC thereon and after the furnishing by the Company and Parent of all information required to be contained therein, the Company will, in consultation with Parent, prepare and the Company will file any required amendments to the Proxy Statement with the SEC. The Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information and will promptly supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. Prior to filing or mailing the Proxy Statement or filing any other required filings (or, in each case, any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company will provide Parent with an opportunity to review and comment on such document or response and will give due consideration to including in such document or response comments reasonably and timely proposed by Parent. As promptly as practicable after the clearance of the Proxy Statement by the SEC or notification by the SEC that it will not be reviewing the Proxy Statement (the “SEC Clearance Date”), the Company will mail the Proxy Statement and all other proxy materials to the holders of shares of Company Common Stock. If the SEC has failed to affirmatively notify the Company within ten (10) days after the filing of the Proxy Statement with the SEC as soon as reasonably practicable after that it will not be reviewing the date hereofProxy Statement, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and then the Company shall cooperate to promptly respond to any comments made by the SEC and otherwise will use its reasonable best efforts to cause obtain such affirmative clearance of the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide from the SEC and the date on which the Company with any information regarding Parent or Merger Sub that may receives such affirmative clearance will be required to prepare and file the Proxy Statement“SEC Clearance Date” for purposes of this Agreement. If at any time after the date the Proxy Statement is mailed to the Company’s stockholders and prior to the mailing Stockholders’ Meeting, any information relating to the Company, Parent, Acquisition Subsidiary, or any of their respective affiliates, officers, or directors, is discovered by the Proxy Statement any event occurs that Company, Parent, or Acquisition Subsidiary and is required to be set forth in an amendment or supplement to the Proxy StatementStatement or any other statement or schedule so that none of the Proxy Statement and any such statement or schedule will include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein (in light of the circumstances under which they were made) not misleading, Parent or the Company, as applicable, party that discovers such information will promptly inform notify the other of parties hereto and the Company will promptly file with the SEC an appropriate amendment or supplement describing such occurrence and cooperate in preparing and filing information and, to the extent required by law, disseminate such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Each of Parent and Acquisition Subsidiary will promptly provide the Company will cause the Proxy Statement with all information concerning Parent and Acquisition Subsidiary required to comply as to form be included in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the The Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement theretowill, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
promptly (d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
no event later than thirty-five (e35) The Company, acting through days following the Company Board of Directors, shallSEC Clearance Date), in accordance with applicable law and the Company’s its certificate of incorporation and bylawsbylaws and with applicable law, duly call, give notice of, convene and hold an a special or annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote considering and taking action upon this Agreement (the “Company Stockholder ApprovalStockholders’ Meeting”). At the Stockholders’ Meeting, the Company will, through the Board and the Special Committee, make the Company Recommendation unless there has been a Company Adverse Recommendation Change. Prior to any Company Adverse Recommendation Change, the Company will take all reasonable lawful action to solicit the Required Vote. Notwithstanding any Company Adverse Recommendation Change, unless this Agreement is validly terminated pursuant to, and in accordance with, Articles 7 and 8, this Agreement will be submitted to the Company’s stockholders for the purpose of seeking the Required Vote. The Company Board will, upon the reasonable request of Directors shallParent, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain advise Parent during the last ten Business Days prior to the date of the Stockholders’ Meeting as to the aggregate tally of the proxies received by the Company Stockholder Approvalwith respect to the Required Vote. Notwithstanding anything in Without the prior written consent of Parent, the adoption of this Agreement to and the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, transactions contemplated hereby (including the Company, regardless of whether Merger) will be the only matter (other than procedural matters) that the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval propose to be acted on by the stockholders of the Company at such meetingthe Stockholders’ Meeting.
(fd) Notwithstanding anything The Company will establish a record date for purposes of determining stockholders entitled to notice of and vote at the contrary contained in this AgreementStockholders’ Meeting (the “Record Date”). After the Company has established the Record Date, the Company may adjourn will consult with Parent prior to changing the Record Date or postpone establishing a different record date for the Stockholders Meeting (i) Stockholders’ Meeting, unless required to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of do so by applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreement.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Company As soon as reasonably practicable following the date of this Agreement (and in any event within 45 calendar days after the date hereof), the Seller shall promptly prepare and file with the SEC a proxy statement relating to in a form mutually agreed upon by the Stockholders Meeting Seller and the Buyer (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing). Parent and the Company shall cooperate to promptly respond to any comments made by the SEC and otherwise The Seller will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Seller’s stockholders as promptly as reasonably practicable after filing. Parent will provide following clearance by the Company with any information regarding Parent or Merger Sub that may be required to prepare and file SEC of the Proxy Statement. If at any time prior to The Seller will advise the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise ParentBuyer, promptly after it receives notice thereof, of any request by the SEC to amend the Proxy Statement or comments (whether written thereon and responses thereto or oral), requests by the SEC for additional information by information. If prior to the SECtime the Stockholder Approval is obtained any event occurs with respect to the Seller or any Affiliate of the Seller, or any other material communications in connection change occurs with respect to information supplied by or on behalf of the Proxy Statement.
(c) Each of Parent and Seller or the Company shall ensure that the information provided by it Buyer, respectively, for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereinthat, in light of the circumstances under which they were madeeach case, not misleading.
(d) Neither the Proxy Statement nor any is required to be described in an amendment of, or a supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Companyto, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval the Seller or the Buyer, as applicable, shall apply only with respect to information relating to promptly notify the other Party or its businessof such event, financial condition or results of operations; and provided, further, that the Company, in connection with a Change Seller and the Buyer shall cooperate in the Company Recommendation, may amend prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement (including and, as required by incorporation by reference) to effect such a Change Law, in disseminating the Company Recommendation, and information contained in such event, Parentamendment or supplement to the Seller’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationsstockholders.
(eb) The Company, acting through the Company Board of Directors, Seller shall, as promptly as reasonably practicable after the date hereof, take all action necessary in accordance with applicable law Delaware General Corporation Law and the CompanySeller’s certificate of incorporation and bylaws, bylaws to (i) duly call, give notice of, convene and (ii) hold an annual or special a meeting of its stockholders (the “Stockholders Meeting”) as soon promptly as reasonably practicable following execution clearance by the SEC of this Agreement the Proxy Statement for the purpose of adopting by requisite vote this Agreement (obtaining the “Company Stockholder Approval”). The Company Board Except in the case of Directors shall, subject to an Adverse Recommendation Change specifically permitted by Section 5.3(b), the Seller, through the Seller Board, shall (x) recommend to the adoption of Seller’s stockholders that they adopt this Agreement at the Stockholders Meeting and (the “Company Recommendation”), y) include such recommendation in the Proxy Statement and use Statement. Without limiting the generality of the foregoing, the Seller agrees that its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement obligations pursuant to the contraryfirst sentence of this Section 5.4(b) shall not be affected by the commencement, unless this Agreement is terminated in accordance with Section 7.1 and subject public proposal, public disclosure or communication to compliance with Section 5.3, the Company, regardless Seller or any other Person of whether the Company Board of Directors has approved, endorsed or recommended an any Acquisition Proposal or has withdrawnthe occurrence of any Adverse Recommendation Change; provided, modified or amended that the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained foregoing shall not prohibit accurate disclosure in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other otherwise (and such disclosure is provided shall not be deemed to be an Adverse Recommendation Change) of factual information regarding the business, financial condition or results of operations of the Seller or the fact that an Acquisition Proposal has been made, the identity of the Person making such proposal or the material terms of such proposal, to the Company’s stockholders extent the Seller Board determines in good faith (after consultation with outside counsel) that such information, facts, identity or terms are required to satisfy the requirements of be disclosed under applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the AgreementLaw.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Company shall promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as As soon as reasonably practicable after following the date hereofof this Agreement, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any comments made by prepare and file with the SEC and otherwise the Proxy Statement. Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to Company’s stockholders as promptly as reasonably practicable after filing. Parent will provide following clearance by the Company with any information regarding Parent or Merger Sub that may be required to prepare and file SEC of the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any request by the SEC to amend the Proxy Statement or comments (whether written thereon and responses thereto or oral), requests by the SEC for additional information by and Company shall use its reasonable best efforts to respond (with the SECassistance of Parent) as promptly as practicable to any comments of the SEC with respect thereto. If prior to the Effective Time any event occurs with respect to Company or any Subsidiary of Company, or any other material communications in connection change occurs with the Proxy Statement.
(c) Each respect to information supplied by or on behalf of Parent and the Company shall ensure that the information provided by it or Parent, respectively, for inclusion in the Proxy Statement that, in each case, is required to be described in an amendment of, or a supplement to, the Proxy Statement, Company or Parent, as applicable, shall promptly notify the other of such event, and Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement and, as required by Law, in disseminating the information contained in such amendment or supplement to Company’s stockholders. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or, in each case, any amendment or supplement thereto, at the time of mailing thereof and at the time ) or responding to any comments of the Stockholders MeetingSEC with respect thereto, does not include Company shall provide Parent an untrue statement of a material fact opportunity to review and comment on such document or omit to state a material fact necessary response and shall consider in order to make the statements therein, in light of the circumstances under which they were made, not misleadinggood faith any comments reasonably proposed by Parent.
(db) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, as promptly as reasonably practicable after the date hereof, take all action necessary in accordance with applicable law Delaware Law and the Company’s certificate of incorporation Company Charter and bylaws, the Company Bylaws to (i) duly call, give notice of, convene and (ii) hold an annual or special a meeting of its stockholders (the “Stockholders Meeting”) as soon promptly as reasonably practicable following execution clearance by the SEC of this Agreement the Proxy Statement for the purpose of adopting by requisite vote this Agreement (obtaining the “Company Stockholder Approval”). The Company Board Except in the case of Directors shall, subject to an Adverse Recommendation Change specifically permitted by Section 5.3(b5.2(b), Company, through the Company Board, shall (x) recommend to Company’s stockholders that they adopt this Agreement, the adoption of this Agreement at Merger and the Stockholders Meeting other transactions contemplated hereby (the “Company Recommendation”), (y) include such recommendation the Company Recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company (z) solicit Stockholder Approval. Notwithstanding anything in this Agreement Without limiting the generality of the foregoing, Company agrees that its obligations pursuant to the contraryfirst sentence of this Section 5.3(b) shall not be affected by the commencement, unless this Agreement is terminated in accordance with Section 7.1 and subject public proposal, public disclosure or communication to compliance with Section 5.3, the Company, regardless Company or any other Person of whether the Company Board of Directors has approved, endorsed or recommended an any Acquisition Proposal or has withdrawnthe occurrence of any Adverse Recommendation Change; provided, modified or amended that the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained foregoing shall not prohibit accurate disclosure in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other otherwise (and such disclosure is provided shall not be deemed to be an Adverse Recommendation Change) of factual information regarding the business, financial condition or results of operations of Company or the fact that an Acquisition Proposal has been made, the identity of the Person making such proposal or the material terms of such proposal, to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of extent the Company Common Stock represented Board determines in good faith (either in person after consultation with outside counsel) that such information, facts, identity or by proxy) terms are required to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreementbe disclosed under applicable Law.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The As promptly as practicable following the date of this Agreement, the Company shall promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereofProxy Statement, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate use all reasonable efforts to respond as promptly respond as practicable to any comments made by of the SEC with respect thereto and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed to the stockholders of the Company as promptly as practicable after filingfollowing the date of this Agreement. The Company shall promptly notify Parent will upon the receipt of any comments from the SEC or the staff of the SEC or any request from the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement and shall provide Parent with copies of all correspondence between the Company with any information regarding Parent or Merger Sub that may be required and its Representatives, on the one hand, and the SEC and the staff of the SEC, on the other hand, relating to prepare and file the Proxy Statement. If at any time Notwithstanding the foregoing, prior to the filing or mailing of the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC or the staff of the SEC with respect thereto, the Company (i) shall provide Parent an opportunity to review and comment on such document or response and (ii) shall include in such document or response all comments reasonably proposed by Parent. Whenever any event occurs that which is required to be set forth in an amendment or supplement to the Proxy Statement, Parent the Company or the CompanyParent, as applicablethe case may be, will promptly inform the other of such occurrence and cooperate in preparing and filing with the SEC and/or mailing to stockholders of the Company such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Companysupplement.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereundershall, as well soon as practicable following the regulations date of the NYSEthis Agreement, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of establish a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylawsrecord date for, duly call, give notice of, convene and hold an annual or special a meeting of its stockholders (the “"Stockholders Meeting”") as soon as reasonably practicable following execution of this Agreement solely for the purpose of adopting by requisite vote this Agreement (obtaining the “Company Stockholder Approval”. Subject to Section 5.02(b). The , the Company Board of Directors shall, subject to Section 5.3(b)through its Company Board, recommend that the Company's stockholders vote in favor of the adoption and approval of this Agreement at and approval of the Stockholders Meeting (the “Company Recommendation”), Merger and shall include such recommendation in the Proxy Statement and Statement. Subject to Section 5.02(b), the Company will use its all reasonable best efforts to obtain solicit from its stockholders proxies in favor of the Company adoption and approval of this Agreement and approval of the Merger, and will take all other action necessary or advisable under applicable Law to secure Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Stockholders' Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required necessary supplement or amendment to the Proxy Statement or other disclosure is provided to its stockholders in advance of a vote on the Company’s stockholders to satisfy the requirements of applicable lawMerger and this Agreement or, (ii) if, if as of the time for which the Stockholders Stockholders' Meeting is originally scheduled (as set forth in the Proxy Statement), ) there are insufficient shares of the Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of such meeting Stockholders' Meeting; provided that any Stockholders Meeting so adjourned or (iii) to solicit additional proxies in favor postponed shall be held as promptly as permitted by the organizational documents of the AgreementCompany.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Company shall As promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and but in any no event not later more than 30 fifteen (15) days after the date hereof, the Company shall prepare and file with the SEC the preliminary proxy statement (as amended or supplemented, the “Proxy Statement”). Each of the Company and Parent shall cooperate furnish all information concerning such Person to the other as may be reasonably requested in connection with such preparation the preparation, filing and filingdistribution of the Proxy Statement. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and shall provide Parent with copies of all correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. Each of the Company and Parent shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed respond as promptly as practicable after filing. Parent will provide to any comments of the Company SEC with any information regarding Parent or Merger Sub that may be required respect to prepare and file the Proxy Statement. If Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent an opportunity to review and comment on such document or response and (ii) shall consider in good faith all such comments reasonably proposed by Parent. If, at any time prior to the mailing Stockholders Meeting, any information relating to the Company, Parent or any of their respective controlled Affiliates, officers or directors should be discovered by the Proxy Statement any event occurs that is required to Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause so that the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of not contain any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading.
(d) Neither , the Proxy Statement nor any party that discovers such information shall promptly notify the other parties hereto, and an appropriate amendment or supplement (including by incorporation by reference) thereto will describing such information shall be filed or with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. No amendment or supplement to the Proxy Statement shall be made by the Company without the approval of both Parent and the CompanyParent, which approval shall not be unreasonably withheld, delayed conditioned or conditioneddelayed; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating notwithstanding anything to the other Party or its businesscontrary herein, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement without the review, comment or approval of Parent from and after any Company Board Recommendation Change.
(including b) The Company agrees that it shall use commercially reasonable best efforts to ensure that the Proxy Statement shall comply as to form in all material respects with the requirements of the Exchange Act and that none of the information included or incorporated by incorporation by reference) to effect such a Change reference in the Proxy Statement shall, at the date the Proxy Statement is filed with the SEC or mailed to the Company RecommendationStockholders or at the time of the Stockholders Meeting, and or at the time of any amendment or supplement thereof, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in such eventorder to make the statements therein, Parent’s right in light of approval shall apply only the circumstances under which they are made, not misleading, except that no covenant is made by the Company with respect to statements made in the Proxy Statement based on information relating supplied in writing by or on behalf of Parent specifically for inclusion or incorporation for reference therein. Parent agrees that no information supplied in writing by or on behalf of Parent specifically for inclusion or incorporation for reference in the Proxy Statement shall, at the date the Proxy Statement is filed with the SEC or mailed to Parent the stockholders of the Company or its businessat the time of the Stockholders Meeting, financial condition or results at the time of operationsany 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 are made, not misleading.
(ec) The CompanyCompany shall (i) as promptly as practicable after the date hereof, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylawsestablish a record date for, duly call, give notice of, convene and hold an annual or special a meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting obtaining the Stockholder Approval and (ii) as promptly as practical, but in no event more than three (3) Business Days following the earliest of
(A) the date upon which the SEC confirms that it has no further comments on the Proxy Statement, (B) the date upon which the SEC confirms that it will not review the Proxy Statement, or (C) the tenth (10th) day following the date the preliminary proxy statement is filed with the SEC and is not commented on by requisite vote the SEC, commence mailing the Proxy Statement to the Company Stockholders; provided that in the case of this Agreement clause (ii), the “Company Stockholder Approval”)shall not be required to commence mailing of the proxy statement prior to one (1) Business Day following the earliest date the Company is permitted to establish a record date under applicable Law. The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at will schedule the Stockholders Meeting to be held as promptly as reasonably practicable, but in no event more than thirty (30) days following the “Company Recommendation”), include such recommendation in initial mailing of the Proxy Statement (or if the Company’s proxy solicitor advises that thirty (30) days from the date of mailing the Proxy Statement is insufficient time to submit and obtain the Stockholder Approval, such later date to which Parent consents (such consent not to be unreasonably withheld, conditioned or delayed) which shall be no more than fifteen days later.
(d) Notwithstanding anything to the contrary in this Agreement, the Company shall be permitted to postpone, adjourn or recess the Stockholders Meeting if (i) the Company is unable to obtain a quorum of its stockholders at such time, to the extent (and only to the extent) necessary in order to obtain a quorum of its stockholders and the Company shall use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrarysuch a quorum as promptly as practicable, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether (ii) the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes determined in good faith (after consultation with outside legal counsel) that such an postponement or adjournment is required (A) by applicable Law to comply with comments made by the SEC with respect to the Proxy Statement or postponement is necessary (B) to ensure that allow for the dissemination of any required supplement or amendment to the Proxy Statement that is required to be filed and disseminated under applicable Law or other disclosure (iii) the Company is provided required to do so by a court of competent jurisdiction in connection with any Legal Proceeding commenced after the Company’s stockholders date hereof against the Company and/or any of its directors (in their capacity as such) by any Company Stockholders relating to satisfy the requirements of applicable lawthis Agreement or transactions contemplated hereby. The Company may (and will, (iiif directed by ▇▇▇▇▇▇) ifpostpone, as of the time for which adjourn or recess the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), if there are insufficient shares of the Company Common Stock represented (either affirmative votes in person or by proxy) to constitute a quorum necessary to conduct business proxy at such meeting to adopt this Agreement to allow reasonable time for the solicitation of proxies for purposes of obtaining the Stockholder Approval. Except as required by law, in no event shall: (1) the Stockholders Meeting be postponed, adjourned, or recessed by an aggregate of ten (10) Business Days without Parent’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, or (iii2) the record date of the Stockholders Meeting be changed without Parent’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. The notice of such Stockholders Meeting shall state that a resolution to adopt this Agreement shall be considered at the Stockholders Meeting. Except to the extent a Company Board Recommendation Change has occurred, (1) the Company Board shall include the Company Board Recommendation in the Proxy Statement and (2) the Company shall use its reasonable best efforts to solicit additional proxies votes of the Company Stockholders in favor of obtaining the AgreementStockholder Approval. Unless this Agreement is validly terminated in accordance with Article VIII prior to the Stockholders Meeting, the Stockholders Meeting shall be convened and the Company shall submit this Agreement and the Merger to its Company Stockholders at the Company Stockholders Meeting, even if the Company Board has effected a Company Board Recommendation Change.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Company As promptly as reasonably practicable, Seller shall promptly prepare a proxy statement relating to and file with the Stockholders Meeting (SEC the “preliminary Proxy Statement”) and . Purchaser shall file reasonably cooperate with Seller in the preparation of the Proxy Statement and shall furnish all information concerning Purchaser that is reasonably requested by Seller or required in connection with the SEC as soon as reasonably practicable after preparation of the date hereofProxy Statement. Seller shall provide Purchaser and its counsel a reasonable opportunity to review and comment on the Proxy Statement, shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Purchaser. The Proxy Statement and in any event amendment thereto shall not later than 30 days after the date hereofinclude any information regarding Purchaser’s business or employees without Purchaser’s consent (such consent not to be unreasonably withheld, and Parent conditioned or delayed). Seller shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause respond promptly to any comments from the SEC or the staff of the SEC. Seller shall notify Purchaser promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall (i) supply Purchaser with copies of all correspondence between Seller and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy StatementStatement or the transactions contemplated by this Agreement, (ii) provide Purchaser with a reasonable opportunity to participate in the response to those comments and requests, and (iii) consider in good faith any comments provided by Purchaser with respect to responses to such comments and requests. The Proxy Statement shall comply as to form in all material respects with the applicable requirements of the Exchange Act. If at any time prior to the mailing Seller Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Purchaser or Seller, or any of the Proxy Statement any event occurs their respective Affiliates, officers or directors, is discovered by Purchaser or Seller that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause so that the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does would not include an untrue statement a misstatement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither , the Proxy Statement nor any Party that discovers such information shall promptly notify the other Party and an appropriate amendment or supplement (including describing such information shall be promptly filed by incorporation Seller with the SEC and, to the extent required by reference) thereto will be filed or applicable Law, disseminated to the stockholders of Seller. Seller shall cause the Company without Proxy Statement to be mailed to Seller’s stockholders as promptly as reasonably practicable after the approval resolution of both Parent and any comments of the Company, which approval shall not be unreasonably withheld, delayed SEC or conditioned; provided, however, that, the staff of the SEC with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the preliminary Proxy Statement (including by incorporation by reference) to effect such a Change in date, the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations“Clearance Date”).
(eb) The CompanySubject to Section 5.3(f) and Section 5.4(c), acting through the Company Board of Directors, shall, Seller shall take all action necessary in accordance with applicable law Law and the Company’s its certificate of incorporation and bylawsbylaws to set a record date for, duly call, call and give notice of, convene and hold an annual or special a meeting of its stockholders for the purpose of obtaining the Seller Stockholder Approval (the “Stockholders Seller Stockholders’ Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (Clearance Date. Unless Seller shall have made a Seller Adverse Recommendation Change in accordance with Section 5.3, Seller shall include the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation Seller Recommendation in the Proxy Statement and shall solicit, and use its reasonable best efforts to obtain obtain, the Company Seller Stockholder ApprovalApproval at the Seller Stockholders’ Meeting (including by soliciting proxies in favor of the adoption of this Agreement). Notwithstanding anything in a Seller Adverse Recommendation Change, Seller shall nonetheless submit this Agreement to the contrarystockholders of Seller for approval and adoption, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meetingArticle IX.
(fc) Notwithstanding anything Seller shall cooperate with and keep Purchaser informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to the contrary contained in this Agreement, the Company its stockholders. Seller may adjourn or postpone the Stockholders Meeting Seller Stockholders’ Meeting: (i) to allow time for the extent it believes filing and dissemination of any supplemental or amended disclosure document that the Seller Board has determined in good faith that such an adjournment or postponement (after consultation with its outside legal counsel) is necessary required to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of be filed and disseminated under applicable law, Law; (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), if Seller reasonably believes there are will be insufficient shares of the Company Seller Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Seller Stockholders’ Meeting or to obtain the Seller Stockholder Approval (provided that, unless agreed by Purchaser, all such meeting adjournments or postponements pursuant to this clause (ii) shall be for periods of no more than ten (10) Business Days each and no more than thirty-five (35) Business Days in the aggregate); or (iii) to solicit additional proxies in favor with the prior written consent of the AgreementPurchaser (which shall not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Agios Pharmaceuticals, Inc.)
Proxy Statement; Stockholders Meeting. (a) The Company shall promptly prepare a proxy statement relating to Promptly following the Stockholders Meeting (the “Proxy Statement”) execution and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and delivery of this Agreement the Company shall cooperate take all action necessary to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of call a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement seeking approval of the Company’s stockholders for (i) the issuance and sale to the Investors of the Shares (the “Company Stockholder ApprovalProposal”). The In connection therewith, the Company Board will promptly prepare and file with the SEC proxy materials (including a proxy statement and form of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement proxy) for use at the Stockholders Meeting (and, after receiving and promptly responding to any comments of the “SEC thereon, shall promptly mail such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company Recommendation”), include such recommendation information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement and use its reasonable best efforts to obtain the Statement. The Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance will comply with Section 7.1 14(a) of the 1934 Act and subject the rules promulgated thereunder in relation to compliance with Section 5.3any proxy statement (as amended or supplemented, the Company, regardless “Proxy Statement”) and any form of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at such meeting.
(f) Notwithstanding anything the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the contrary contained in this Agreement, the Company may adjourn solicitation of proxies or postpone the Stockholders Meeting (i) which has become false or misleading. If the Company should discover at any time prior to the extent it believes Stockholders Meeting, any event relating to the Company or any of its affiliates, officers or directors that is required to be set forth in good faith that such an adjournment or postponement is necessary to ensure that any required a supplement or amendment to the Proxy Statement or other disclosure is provided Statement, in addition to the Company’s obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders (and, subject to satisfy their fiduciary obligations, not revoke or amend such recommendation) that the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies stockholders vote in favor of the AgreementProposal and shall cause the Company to take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal. Whether or not the Company’s Board of Directors determines at any time after the date hereof that, due to its fiduciary duties, it must revoke or amend its recommendation to the Company’s stockholders, the Company shall be required to, and will take, in accordance with applicable law and its Articles of Incorporation and Bylaws, all action necessary to convene the Stockholders Meeting as promptly as practicable to consider and vote upon the approval of the Proposal.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The As promptly as practicable following the date hereof, the Company shall promptly use its reasonable best efforts to prepare and file by March 1, 2012 a proxy statement relating to for the Stockholders Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) seeking stockholder approval of the Merger and adoption of this Agreement; provided, that Parent shall be given a reasonable opportunity to review and comment on the draft of the Proxy Statement before it is filed with the SEC and the Company shall coordinate and cooperate with, and give due consideration to all reasonable additions, deletions, or changes suggested by Parent in connection with the Proxy Statement. Once such draft is in a form acceptable to both Parties, the Company shall file the Proxy Statement with the SEC. The Company shall include in the Proxy Statement the Company Recommendation unless the Company has withdrawn, modified or amended the Company Recommendation in accordance with Section 5.3. The Company shall use its reasonable best efforts to obtain and furnish the information required to be included by the SEC as soon as reasonably practicable after in the date hereof, and in any event not later than 30 days after the date hereofProxy Statement, and Parent and Merger Sub shall cooperate with the Company in the preparation of the Proxy Statement and shall furnish all information concerning Parent and Merger Sub as is required to be included in the Proxy Statement.
(b) The Company shall provide Parent with copies of any written comments, and shall inform Parent of any oral comments, that the Company or its Representatives may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such preparation comments, and filing. Parent any written or oral responses thereto, and the Company shall provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC and its staff, on the other hand. Parent shall be given a reasonable opportunity to review and comment on any such written responses and the Company shall coordinate and cooperate with, and give due consideration to all reasonable additions, deletions, or changes suggested by Parent in connection with such responses. The Company shall, after consultation with Parent, respond promptly respond to any comments made by the SEC and otherwise use reasonable best efforts with respect to cause the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the The Company shall ensure use reasonable best efforts so that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement theretoshall not, at the time of mailing thereof the Proxy Statement is first mailed and at the time of the Stockholders Special Meeting, does not include an contain any untrue statement of a material fact or omit to state a any material fact required to be stated in the Proxy Statement or necessary in order to make the statements thereinin the Proxy Statement, in light of the circumstances under which they were are made, not misleading; provided, however, that no such covenant or agreement is made by the Company with respect to information supplied by or on behalf of Parent, relating to Parent, Merger Sub or any Subsidiary of Parent, expressly for inclusion in the Proxy Statement.
(d) Neither The Company and Parent agree to promptly correct any information provided by it for use in the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated if and to the stockholders of extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Laws, and the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect further agrees to documents filed by a Party that are incorporated by reference in take all steps necessary to cause the Proxy Statement, this right as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including as provided in Section 6.1(e)(ii), mailed to holders of Shares, in each case as and to the extent required by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationsapplicable federal securities Laws.
(e) The CompanyAs promptly as reasonably practicable after the date hereof, acting through the Company Board of Directors, shall, :
(i) in accordance with applicable law Laws and the Company’s certificate of incorporation and bylawsCompany Governing Documents, mail “broker search cards” with respect to, duly set a record date for, call, give notice of, convene convene, and hold an annual or a special meeting of its stockholders the Company Stockholders (including any adjournments and postponements, the “Stockholders Special Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote considering and taking action upon this Agreement (with the “record date and meeting date set in consultation with Parent); provided, that the broker search cards shall be mailed no later than the fifth (5th) Business Day after the date hereof and shall assume a record date of March 22, 2012; provided, further, however, that the Special Meeting shall not be held before the Go-Shop Period Termination Date; provided, further, however, that the Company Stockholder Approval”may postpone the Special Meeting (A) with the prior written consent of Parent (which prior written consent shall not be unreasonably withheld or delayed). The , (B) to allow reasonable additional time for the filing and distribution of any supplemental or amended disclosure which the Company Board of Directors shallhas determined in good faith (after consultation with its outside legal counsel) is required under applicable Laws to be disseminated and reviewed by the Company’s stockholders prior to the Special Meeting, subject or (C) if the Company has provided a written notice to Parent of an intention to make a Company Change of Recommendation as contemplated by Section 5.3(b)) and the latest five (5) or three (3) Business Day period (as applicable) contemplated by Section 5.3(b) has not then ended;
(ii) cause the definitive Proxy Statement to be mailed to the Company Stockholders as promptly as practicable after, recommend and in any event no later than three (3) Business Days after, the adoption later of this Agreement at (A) the Stockholders Meeting (date on which the “SEC shall have informed the Company Recommendation”), include such recommendation in that it does not intend to review or has no further comments with respect to the Proxy Statement Statement, and (B) March 16, 2012; and
(iii) use its reasonable best efforts to obtain solicit from the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the adoption of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Advance America, Cash Advance Centers, Inc.)
Proxy Statement; Stockholders Meeting. (a) As soon as reasonably practicable following the date of this Agreement, the Company shall, with the assistance of Parent, prepare and file with the SEC the preliminary Proxy Statement and the Company Schedule 13E-3, and shall respond to and resolve all SEC comments with respect to such filings as soon as practicable after receipt thereof. Subject to applicable Laws, the Company and Parent (with respect to itself and Merger Sub) each shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement and the Company Schedule 13E-3. Each of Parent, Merger Sub and the Company agrees to correct any information provided by it for use in the Proxy Statement and the Company Schedule 13E-3 which shall have become false or misleading. The Company shall provide Parent and Merger Sub with (in writing, if written), and shall consult with Parent and Merger Sub regarding, any comments (written or oral) that may be received by the Company or its counsel from the SEC or its staff with respect to such filings promptly prepare after receipt thereof. Parent and its counsel shall be given a proxy statement relating reasonable opportunity to review any such written and oral comments and proposed responses before they are filed with the SEC. The Company shall give reasonable and good faith consideration to any comments made by Parent and its counsel.
(b) Subject to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC other provisions of this Agreement, as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any SEC indicates that it has no further comments made by the SEC and otherwise use reasonable best efforts to cause on the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide or the Company with any information regarding Parent or Merger Sub that may be required to prepare and file Schedule 13E-3, the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company its Board of Directors (acting through the Special Committee, if such committee still exists, or otherwise by resolution of a majority of its Disinterested Directors), shall, shall (i) take all action necessary in accordance with applicable law the DGCL and the Company’s certificate its Certificate of incorporation Incorporation and bylaws, Bylaws to duly call, give notice of, convene and hold an annual or special a meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement obtaining the Company Stockholder Approval (such meeting or any adjournment or postponement thereof, the “Company Stockholder ApprovalMeeting”). The Company Board of Directors shall, (ii) subject to Section 5.3(b)5.3, recommend include in the Proxy Statement the Recommendation and (iii) use reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain Agreement. Once the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 Meeting has been called and subject to compliance with Section 5.3noticed, the Company, regardless of whether Company shall not postpone or adjourn the Company Board Meeting without the consent of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Parent. Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn shall not be required to hold the Company Meeting if this Agreement is terminated.
(c) Parent and Merger Sub agree to cause all shares of Common Stock owned by Parent and Merger Sub or postpone the Stockholders Meeting (i) any subsidiary of Parent or Merger Sub to the extent it believes be voted in good faith that such an adjournment favor or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as approval of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the AgreementMerger.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Company shall If approval of the Company's stockholders is required by applicable law in order to consummate the Merger other than pursuant to Section 253 of DGCL, promptly prepare a proxy statement relating following the acceptance for payment of Shares pursuant to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereofTender Offer, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall prepare, and the Company shall file with the SEC under the Exchange Act, the Company Proxy Statement, and Parent and the Company shall use their respective best efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after such filing. Parent, Merger Sub and the Company shall cooperate to promptly respond to with each other in the preparation of the Proxy Statement, and the Company shall notify Parent of the receipt of any comments made of the SEC with respect to the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Parent promptly copies of all correspondence between the Company or any representative of the Company and the SEC with respect thereto. The Company shall give Parent and its counsel the opportunity to review the Proxy Statement, including all amendments and supplements thereto, prior to its being filed with the SEC and shall give Parent and its counsel the opportunity to review all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC. Each of the Company, Parent and Merger Sub agrees to use its reasonable best efforts, after consultation with the other parties hereto, to respond promptly to all such comments of and requests by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement and all required amendments and supplements thereto to be mailed as promptly as practicable after filing. Parent will provide to the holders of Shares entitled to vote at the Company with any information regarding Parent or Merger Sub that may be required to prepare and file Stockholders' Meeting at the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Companyearliest practicable time.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the If approval of Company's stockholders is required by applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a material fact necessary law in order to make consummate the statements thereinMerger, in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by establish a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylawsrecord date for, duly call, give notice of, convene and hold an annual or special a meeting of its stockholders (the “"Company Stockholders Meeting”") as soon promptly as reasonably practicable following execution the acceptance for payment of this Agreement Shares pursuant to the Tender Offer for the purpose of adopting by requisite vote this Agreement (considering the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the approval and adoption of this Agreement and (with the consent of Parent) such other matters as may in the reasonable judgment of Company be appropriate for consideration at the Company Stockholders Meeting. Once the Company Stockholders Meeting has been called and noticed, the Company shall not postpone or adjourn the Company Stockholders Meeting (other than for the “Company Recommendation”), include such recommendation in absence of a quorum) without the consent of Parent. The Proxy Statement shall include the opinion of AAI referred to in Section 3.18 and shall include the recommendation of the Board of Directors of the Company that the holders of Shares approve and adopt this Agreement and the Merger. The Company shall use its reasonable best efforts to obtain take all actions necessary or advisable to secure the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless vote or consent of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval stockholders required by the stockholders of DGCL to effect the Company at such meeting.
(f) Merger. Notwithstanding anything to the contrary contained in this Agreement, the Company's obligation to establish a record date for, call, give notice of, convene and hold the Company may adjourn or postpone the Stockholders Meeting in accordance with this Section 5.3 shall not be limited to or otherwise affected by the commencement, disclosure, announcement or submission to the Company of any Acquisition Proposal (ias defined below).
(c) Notwithstanding Sections 5.3(a) and (b) above, if Merger Sub shall acquire at least 90% of the outstanding Shares in the Offer, the parties hereto shall take all necessary actions (including actions referred to in clause (a) above, as applicable) to cause the extent it believes in good faith that such an adjournment or postponement is necessary Merger to ensure that any required supplement or amendment to become effective, as soon as practicable after the Proxy Statement or other disclosure is provided to expiration of the Offer, without a meeting of stockholders of the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as in accordance with Section 253 of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the AgreementDGCL.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than the 100th day after the date hereof (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for (i) the issuance and sale to the Investors of the Securities pursuant to Nasdaq Marketplace Rule 4350(i)(1)(B) (the “Proposal”). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement relating to and form of proxy) for use at the Stockholders Meeting and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement form of proxy to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same sent to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent Stockholders Meeting, and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto, at the time of mailing thereof and ) is first mailed to stockholders or at the time of the Stockholders Meeting, does not include an contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements thereinmade therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in light of addition to the circumstances Company’s obligations under which they were madethe 1934 Act, not misleadingthe Company will promptly inform the Investors thereof.
(db) Neither Subject to their fiduciary obligations under applicable law (as determined in good faith by the Proxy Statement nor any amendment Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal (the “Company Board Recommendation”) and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or supplement withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (including by incorporation by referenceafter consultation with the Company’s outside counsel) thereto will be filed shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company’s stockholders. Whether or disseminated not the Company’s Board of Directors modifies, amends or withdraws the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Delaware General Corporation Law and the provisions of its Certificate of Incorporation and Bylaws, (i) take all action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, to consider and vote upon the approval of the Proposal and (ii) submit the Proposal at the Stockholders Meeting to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationsfor their approval.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreement.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Company shall As promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable (and no later than 30 days) after the date hereof, and or such other date as mutually agreed by the parties in any event not later than 30 days after writing, the date hereofCompany shall prepare, in consultation with Parent, and Parent shall cooperate file with such preparation the SEC the preliminary Proxy Statement. Except to the extent a Company Adverse Recommendation Change has been made in accordance with Section 6.9(d) or Section 6.9(e) and filing. Parent has not been rescinded, the Company and the Company Board shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide include the Company with any information regarding Parent or Merger Sub that may be required to prepare and file Recommendation in the Proxy Statement. If at any time prior to the mailing Each of the Proxy Statement any event occurs Company and Parent shall furnish all information concerning itself and its respective Affiliates that is required to be set forth included in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to or that is customarily included in proxy statements prepared in connection with transactions of the type contemplated by this Agreement. The Company agrees that the Proxy Statement shall comply as to form in all material respects with the applicable provisions requirements of the Exchange Act and the rules and regulations that none of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written information included or oral), requests for additional information incorporated by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion reference in the Proxy Statement and each amendment shall, at the date the Proxy Statement is filed with the SEC or supplement theretomailed to the Stockholders, at the time of mailing thereof and the Stockholders’ Meeting, or at the time of the Stockholders Meetingany amendment or supplement thereof, does not include an contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading.
(d) Neither , except that no covenant is made by the Company with respect to statements made in the Proxy Statement nor based on information supplied in writing by or on behalf of Parent or Merger Sub specifically for inclusion or incorporation by reference therein. Parent agrees that no information supplied in writing by or on behalf of Parent or Merger Sub specifically for inclusion or incorporation by reference in the Proxy Statement shall, at the date the Proxy Statement is filed with the SEC or mailed to the Stockholders, at the time of the Stockholders’ Meeting, or at the time of any amendment or supplement thereof, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Company shall use its reasonable best efforts to respond as promptly as practicable to any comments (including by incorporation by referencewritten or oral) thereto will be filed of the SEC or disseminated its staff with respect to the stockholders Proxy Statement. The Company shall promptly notify Parent upon the receipt of any comments (written or oral) from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and shall furnish to Parent a copy of any written comments from the SEC or its staff. Except to the extent a Company Adverse Recommendation Change has been made in accordance with Section 6.9(d) or Section 6.9(e) and has not been rescinded, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments (written or oral) of the SEC or its staff thereto, the Company without (i) shall give Parent and its counsel a reasonable opportunity to review and comment on such document or response; (ii) shall consider any comments proposed by Parent in good faith and (iii) shall not file or mail such document, or respond to the SEC or its staff, prior to receiving the approval of both Parent and the CompanyParent, which approval shall not be unreasonably withheld, delayed conditioned or conditioned; provideddelayed. The Company will cause the definitive Proxy Statement to be mailed to the Stockholders entitled to vote at the Stockholders’ Meeting no less than 20 days before the date of the Stockholders’ Meeting. If, howeverat any time prior to the Stockholders’ Meeting, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to any information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in Parent or any of their respective Affiliates, officers or directors is discovered by the Company Recommendation, may amend or Parent that should be set forth in an amendment or supplement to the Proxy Statement (including by incorporation by reference) so that the Proxy Statement does not contain any untrue statement of any material fact or omit to effect state any material fact required to be stated therein or necessary in order to make the statements therein, at the time and in light of the circumstances under which they were made, not false or misleading, the party that discovers such a Change in information shall promptly notify the other party and correct such information, and the Company Recommendationshall file an appropriate amendment or supplement describing such information with the SEC and, and in to the extent required by applicable Law, disseminate such event, Parent’s right of approval shall apply only with respect information to information relating to Parent or its business, financial condition or results of operationsthe Stockholders.
(eb) The Company, acting through the Company Board of Directors, shall, shall conduct a “broker search” in accordance with applicable law Rule 14a-13 of the Exchange Act and upon the Company’s certificate reasonable request of incorporation and bylaws, Parent. The Company shall duly call, give notice of, convene and hold an annual or special a meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (obtaining the “Requisite Company Stockholder Approval”). The Company Board of Directors shall, subject Vote to Section 5.3(b), recommend approve the adoption of this Agreement at and the Stockholders Meeting Separation and Distribution Agreement (the “Stockholders’ Meeting”) with a record date and meeting date to be selected after reasonable consultation with Parent, which meeting date shall be as promptly as practicable, and in no event later than 10 days, after the date on which the Spin-Off Registration Statement has become effective, unless Section 7.1(e)(ii) has previously been satisfied, in which case as promptly as practicable, and in no event later than 10 days, after the date on which Section 7.1(e)(ii) has been satisfied. The notice of such Stockholders’ Meeting shall state that a resolution to adopt this Agreement and the Separation and Distribution Agreement shall be considered at the Stockholders’ Meeting. Subject to a Company Recommendation”Adverse Recommendation Change in accordance with Section 6.9(d) or Section 6.9(e), include such recommendation in the Proxy Statement and Company shall use its reasonable best efforts to solicit and obtain the Requisite Company Stockholder ApprovalVote in favor of such resolution. Notwithstanding anything in this Agreement The Company shall (A) provide Parent reasonably detailed periodic updates concerning proxy solicitation results on a timely basis following the initial mailing of the Proxy Statement and (B) give written notice to Parent one day prior to the contraryStockholders’ Meeting, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3on the day of, but prior to, the CompanyStockholders’ Meeting, regardless indicating whether as of whether such date sufficient proxies representing the Requisite Company Board Vote has been obtained in favor of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) resolution. Notwithstanding anything to the contrary contained herein, the Company shall not postpone or adjourn the Stockholders’ Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed); provided that if at any time following the dissemination of the Proxy Statement, either the Company or Parent reasonably determines in good faith that the Requisite Company Vote to approve the adoption of this Agreement and the Separation and Distribution Agreement is unlikely to be obtained at the Stockholders’ Meeting, including due to an absence of a quorum, then subject to applicable Law, each of the Company and Parent shall have the right to require an adjournment or postponement of the Stockholders’ Meeting for the purpose of soliciting additional votes in favor of this Agreement; provided, further, that no such single adjournment or postponement shall delay the Stockholders’ Meeting by more than seven days from the prior-scheduled date or to a date on or after the fifth Business Day preceding the Outside Date. Notwithstanding the foregoing, the Company may postpone or adjourn the Stockholders’ Meeting if (1) the Company is required to postpone or postpone adjourn the Stockholders Stockholders’ Meeting by applicable Law, or (i2) to the extent it believes Company Board or any authorized committee thereof shall have determined in good faith (after consultation with outside legal counsel) that it is necessary or appropriate to postpone or adjourn the Stockholders’ Meeting in order to give the Stockholders sufficient time to evaluate any information or disclosure that the Company has sent or otherwise made available to such an holders by issuing a press release, filing materials with the SEC or otherwise (in each case so long as any such information or disclosure was made in compliance with this Agreement); provided that the Company shall be permitted to postpone or adjourn the Stockholders’ Meeting pursuant to this clause (2) on no more than two occasions and in each case no such adjournment or postponement shall delay the Stockholders’ Meeting by more than seven days from the prior-scheduled date or to a date on or after the fifth Business Day preceding the Outside Date. In no event shall the record date of the Stockholders’ Meeting be changed without Parent’s prior written consent, not to be unreasonably withheld, conditioned or delayed, unless the Company is necessary required to ensure that any required supplement or amendment do so by applicable Law. Without limiting the generality of the foregoing, but subject to the Proxy Statement or other disclosure is provided to Section 6.9 and the Company’s stockholders rights to satisfy terminate this Agreement under the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as circumstances set forth in the Proxy Statement)Section 8.1, there are insufficient shares of the Company Common Stock represented (either in agrees that its obligations pursuant to this Section 6.2 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Acquisition Proposal or by proxyany event constituting or that could constitute an Intervening Event. Notwithstanding any Company Adverse Recommendation Change, unless this Agreement has been validly terminated pursuant to Section 8.1, (A) the Company shall submit this Agreement to constitute a quorum necessary the Stockholders for approval at the Stockholders’ Meeting and (B) the only matters to conduct business be voted upon at the Stockholders’ Meeting shall be the adoption of this Agreement and the Separation and Distribution Agreement and routine proposals required in connection with such meeting or vote, including for the avoidance of doubt adjournments proposed in compliance with this Section 6.2(b) and any non-binding advisory vote required under applicable Law (iii) to solicit additional proxies in favor of the Agreementand not any other matters, including any Acquisition Proposal).
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Company shall As promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and but in any no event not later more than 30 fifteen (15) days after the date hereof, the Company shall prepare and file with the SEC the preliminary proxy statement (as amended or supplemented, the “Proxy Statement”). Each of the Company and Parent shall cooperate furnish all information concerning such Person to the other as may be reasonably requested in connection with such preparation the preparation, filing and filingdistribution of the Proxy Statement. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and shall provide Parent with copies of all correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. Each of the Company and Parent shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed respond as promptly as practicable after filing. Parent will provide to any comments of the Company SEC with any information regarding Parent or Merger Sub that may be required respect to prepare and file the Proxy Statement. If Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent an opportunity to review and comment on such document or response and (ii) shall consider in good faith all such comments reasonably proposed by Parent. If, at any time prior to the mailing Stockholders Meeting, any information relating to the Company, Parent or any of their respective controlled Affiliates, officers or directors should be discovered by the Proxy Statement any event occurs that is required to Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause so that the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of not contain any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading.
(d) Neither , the Proxy Statement nor any party that discovers such information shall promptly notify the other parties hereto, and an appropriate amendment or supplement (including by incorporation by reference) thereto will describing such information shall be filed or with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. No amendment or supplement to the Proxy Statement shall be made by the Company without the approval of both Parent and the CompanyParent, which approval shall not be unreasonably withheld, delayed conditioned or conditioneddelayed; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating notwithstanding anything to the other Party or its businesscontrary herein, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement without the review, comment or approval of Parent from and after any Company Board Recommendation Change.
(including b) The Company agrees that it shall use commercially reasonable best efforts to ensure that the Proxy Statement shall comply as to form in all material respects with the requirements of the Exchange Act and that none of the information included or incorporated by incorporation by reference) to effect such a Change reference in the Proxy Statement shall, at the date the Proxy Statement is filed with the SEC or mailed to the Company RecommendationStockholders or at the time of the Stockholders Meeting, and or at the time of any amendment or supplement thereof, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in such eventorder to make the statements therein, Parent’s right in light of approval shall apply only the circumstances under which they are made, not misleading, except that no covenant is made by the Company with respect to statements made in the Proxy Statement based on information relating supplied in writing by or on behalf of Parent specifically for inclusion or incorporation for reference therein. Parent agrees that no information supplied in writing by or on behalf of Parent specifically for inclusion or incorporation for reference in the Proxy Statement shall, at the date the Proxy Statement is filed with the SEC or mailed to Parent the stockholders of the Company or its businessat the time of the Stockholders Meeting, financial condition or results at the time of operationsany 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 are made, not misleading.
(ec) The CompanyCompany shall (i) as promptly as practicable after the date hereof, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylawsestablish a record date for, duly call, give notice of, convene and hold an annual or special a meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting obtaining the Stockholder Approval and (ii) as promptly as practical, but in no event more than three (3) Business Days following the earliest of (A) the date upon which the SEC confirms that it has no further comments on the Proxy Statement, (B) the date upon which the SEC confirms that it will not review the Proxy Statement, or (C) the tenth (10th) day following the date the preliminary proxy statement is filed with the SEC and is not commented on by requisite vote the SEC, commence mailing the Proxy Statement to the Company Stockholders; provided that in the case of this Agreement clause (ii), the “Company Stockholder Approval”)shall not be required to commence mailing of the proxy statement prior to one (1) Business Day following the earliest date the Company is permitted to establish a record date under applicable Law. The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at will schedule the Stockholders Meeting to be held as promptly as reasonably practicable, but in no event more than thirty (30) days following the “Company Recommendation”), include such recommendation in initial mailing of the Proxy Statement (or if the Company’s proxy solicitor advises that thirty (30) days from the date of mailing the Proxy Statement is insufficient time to submit and obtain the Stockholder Approval, such later date to which Parent consents (such consent not to be unreasonably withheld, conditioned or delayed) which shall be no more than fifteen days later.
(d) Notwithstanding anything to the contrary in this Agreement, the Company shall be permitted to postpone, adjourn or recess the Stockholders Meeting if (i) the Company is unable to obtain a quorum of its stockholders at such time, to the extent (and only to the extent) necessary in order to obtain a quorum of its stockholders and the Company shall use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrarysuch a quorum as promptly as practicable, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether (ii) the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes determined in good faith (after consultation with outside legal counsel) that such an postponement or adjournment is required (A) by applicable Law to comply with comments made by the SEC with respect to the Proxy Statement or postponement is necessary (B) to ensure that allow for the dissemination of any required supplement or amendment to the Proxy Statement that is required to be filed and disseminated under applicable Law or other disclosure (iii) the Company is provided required to do so by a court of competent jurisdiction in connection with any Legal Proceeding commenced after the Company’s stockholders date hereof against the Company and/or any of its directors (in their capacity as such) by any Company Stockholders relating to satisfy the requirements of applicable lawthis Agreement or transactions contemplated hereby. The Company may (and will, (iiif directed by ▇▇▇▇▇▇) ifpostpone, as of the time for which adjourn or recess the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), if there are insufficient shares of the Company Common Stock represented (either affirmative votes in person or by proxy) to constitute a quorum necessary to conduct business proxy at such meeting to adopt this Agreement to allow reasonable time for the solicitation of proxies for purposes of obtaining the Stockholder Approval. Except as required by law, in no event shall: (1) the Stockholders Meeting be postponed, adjourned, or recessed by an aggregate of ten (10) Business Days without Parent’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, or (iii2) the record date of the Stockholders Meeting be changed without Parent’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. The notice of such Stockholders Meeting shall state that a resolution to adopt this Agreement shall be considered at the Stockholders Meeting. Except to the extent a Company Board Recommendation Change has occurred, (1) the Company Board shall include the Company Board Recommendation in the Proxy Statement and (2) the Company shall use its reasonable best efforts to solicit additional proxies votes of the Company Stockholders in favor of obtaining the AgreementStockholder Approval. Unless this Agreement is validly terminated in accordance with Article VIII prior to the Stockholders Meeting, the Stockholders Meeting shall be convened and the Company shall submit this Agreement and the Merger to its Company Stockholders at the Company Stockholders Meeting, even if the Company Board has effected a Company Board Recommendation Change.
Appears in 1 contract
Sources: Merger Agreement (Nevro Corp)
Proxy Statement; Stockholders Meeting. (a) The Company shall as promptly as practicable following the date of this Agreement (and in any event within five calendar days after the date of this Agreement) prepare and mail a proxy statement relating to the Stockholders Meeting meeting of the Company’s stockholders to be held in connection with the Merger (as amended or supplemented from time to time, the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) . The Company will cause provide Parent with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents related to comply as to form in all material respects with the applicable provisions meeting of stockholders of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications to be held in connection with the Proxy Statement.
Merger (cthe “Stockholders Meeting”) Each of Parent and prior to mailing such documents to the Company’s stockholders. The Company shall ensure that the information provided by it for inclusion will include in the Proxy Statement and such other documents related to the Stockholders Meeting all comments reasonably and promptly proposed by the Parent or its legal counsel and each amendment or supplement theretoagrees that all information relating to Parent and its Subsidiaries included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably. The Company will take all reasonable care to ensure that Proxy Statement will not, at the time date the Proxy Statement is mailed to stockholders of mailing thereof and the Company or at the time of the Stockholders Meeting, does not include an and at the Effective Time, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading.
(d) Neither the Proxy Statement nor any amendment . No representation or supplement (including warranty is made by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information or statements made in the Proxy Statement based on information regarding Parent or its Affiliates supplied by or on behalf of Parent or its Affiliates for inclusion or incorporation by reference therein. The Company has taken and will take all reasonable care to ensure that any information notified publicly in connection with the Merger, including, without limitation, the Proxy Statement and any other announcements relating to the other Party or its businessMerger, financial condition or results is made in accordance with the AIM Rules (including AIM Rules 10, 13 and 41, as applicable) and the OTC Rules. Subject to S ection 6.2 of operations; and providedthis Agreement, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shallwill take, in accordance with applicable law Law and the Company’s its certificate of incorporation and bylaws, duly callall action necessary to convene the Stockholders Meeting as promptly as practicable after the mailing of the Proxy Statement, give notice of, convene and hold an annual or special meeting of its stockholders (in any event within 30 calendar days after the “Stockholders Meeting”) as soon as reasonably practicable following execution date of this Agreement for the purpose of adopting by requisite Agreement, to consider and vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend upon the adoption of this Agreement at and approval of the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders delisting of the Company at Common Stock from AIM and to cause such meeting.
(f) Notwithstanding anything vote to the contrary contained in this Agreementbe taken, the Company may and shall not postpone or adjourn or postpone the Stockholders Meeting (i) such meeting except to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable lawby Law or, (ii) if, if as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), ) there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such meeting of the Stockholders Meeting or (iii) to solicit additional if holders of an insufficient number of shares of Company Common Stock have delivered proxies voting in favor of the adoption of this Agreement and the delisting from AIM to provide the Requisite Company Vote. Subject to Section 6.2 of this Agreement, the Company Board shall recommend such adoption and approval, as the case may be, and shall take all lawful action to solicit such adoption and approval. The Company agrees (i) to provide Parent reasonably detailed periodic updates concerning proxy solicitation results on a timely basis (including, if requested, promptly providing daily voting reports) and (ii) to give written notice to Parent one day prior to the Stockholders Meeting and on the day of, but prior to the Stockholders Meeting, indicating whether as of such date sufficient proxies representing the Requisite Company Vote have been obtained. Except in the case of a Company Adverse Recommendation Change, Parent may require the Company to, and if so required the Company shall, adjourn or postpone the Stockholders Meeting if, as of the time for which such meeting is originally scheduled, there are insufficient Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such meeting or if on the date of such meeting the Company has not received proxies representing a sufficient number of Shares necessary to obtain the Requisite Company Vote. Notwithstanding the foregoing Sections 6.3(a)-(d), this Section 6.3 shall not apply to the extent that Company and Parent agree that a meeting of the Company’s stockholders in connection with the Merger is not required by the DGCL and the AIM Rules.
Appears in 1 contract
Sources: Merger Agreement
Proxy Statement; Stockholders Meeting. (a) The Merger Agreement provides that, if a meeting of the Company's stockholders is required by Delaware Law to approve the Merger Agreement and the Merger, then promptly after consummation of the Offer, the Company shall promptly will prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall will file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed Commission as promptly as practicable after filing. Parent will provide the Company a preliminary proxy statement, together with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior a form of proxy, with respect to the mailing meeting of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to 's stockholders at which the stockholders of the Company.
(b) The Company will cause be asked to vote upon and approve the Proxy Statement Merger Agreement and the Merger. As promptly as practicable after such filing, subject to comply as to form in all material respects compliance with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunderCommission, as well as the regulations Company will prepare and file a definitive Proxy Statement and form of proxy with respect to such meeting (the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the "Proxy Statement.
(c") Each of Parent and the Company shall ensure that the information provided by it for inclusion in will use all reasonable efforts to have the Proxy Statement cleared by the Commission as promptly as practicable, and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither promptly thereafter will mail the Proxy Statement nor any amendment to stockholders of the Company. In lieu of a stockholders meeting, the Company could seek stockholder approval of the Merger Agreement and the Merger by written consent. Pursuant to the Merger Agreement, if a meeting of the Company's stockholders is required by Delaware Law to approve the Merger Agreement and the Merger, then as promptly as practicable after consummation of the Offer, the Company will take all action necessary, in accordance with Delaware Law and its Certificate of Incorporation and Bylaws, to convene a meeting (or supplement obtain the written consents) of its stockholders (including by incorporation by referencethe "Special Meeting") thereto to consider and vote upon the Merger Agreement and the Merger. The Merger Agreement further provides that the affirmative vote of stockholders required for approval of the Merger Agreement and Merger will be filed or disseminated no greater than a majority. It also provides that, subject to the fiduciary duties of the Board under Delaware Law, the Proxy Statement will contain the recommendation of the Board that the stockholders of the Company without vote to adopt and approve the approval of both Parent Merger Agreement and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; Merger and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and will use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the solicit from stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of such adoption and approval (and Purchaser will vote all Shares purchased by it in favor of such adoption and approval) and to take all other action necessary or, in the Agreementreasonable judgment of Parent, helpful to secure the vote or consent of stockholders required by Delaware Law to effect the Merger.
Appears in 1 contract
Sources: Tender Offer Statement
Proxy Statement; Stockholders Meeting. (a) The Company shall promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as As soon as reasonably practicable after following the date hereofof this Agreement the Company shall prepare and file with the SEC a proxy statement (together with any amendments or supplements thereto, the "Proxy Statement") in connection with the Merger, and the parties shall file, if necessary, any other statement or schedule relating to this Agreement and the transactions contemplated hereby; provided, however, that the Company shall not be in any event not later than 30 days after the date hereof, and breach of this Section 5.6 if Parent shall cooperate with such fail to provide any information reasonably necessary for the preparation and filingof the Proxy Statement. Each of the Company, Parent and the Purchaser shall use their respective reasonable efforts to furnish the information required to be included by the SEC in the Proxy Statement and any such statement or schedule. After consultation with Parent, the Company shall cooperate to respond promptly respond to any comments made by the SEC with respect to the Proxy Statement and otherwise use reasonable best efforts to cause the a definitive Proxy Statement to be mailed as to its stockholders, and the parties shall respond promptly as practicable after filingto any comments with respect to any other statement or schedule filed by them. Parent No filing of, or amendment or supplement to, the Proxy Statement or any other statement or schedule will provide be made by the Company with without providing Parent a reasonable opportunity to review and comment thereon, and no filing of any information regarding statement or schedule will be made by Parent or Merger Sub that may be required the Purchaser without providing the Company a reasonable opportunity to prepare review and file the Proxy Statementcomment thereon. If at any time after the date the Proxy Statement is mailed to the Company's stockholders and prior to the mailing Stockholders' Meeting any information relating to the Company, Parent, the Purchaser or any of their respective affiliates, officers or directors, should be discovered by the Proxy Statement any event occurs that Company, Parent or the Purchaser which is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each statement or schedule, so that none of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment any such statement or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not schedule will include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither , the Proxy Statement nor any party which discovers such information shall promptly notify the other parties and an appropriate amendment or supplement (including describing such information shall be promptly filed with the SEC and, to the extent required by incorporation by reference) thereto will be filed or Law, disseminated to the stockholders of the Company without the approval Company.
(b) Each of both Parent and the Company, which approval shall not Purchaser agrees that (i) it will promptly provide the Company with all information concerning Parent and the Purchaser necessary or reasonably appropriate to be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference included in the Proxy StatementStatement and (ii) at the Stockholders' Meeting, if held, or any postponement or adjournment thereof (or at any other meeting at which the Merger or this right Agreement are considered by stockholders), it will vote, or cause to be voted, all of approval shall apply only with respect to information relating to the other Party Shares over which it or any of its businessSubsidiaries has voting control, financial condition or results of operations; and provided, further, that the Companyif any, in connection with a Change in favor of the Company Recommendation, may amend or supplement approval and adoption of this Agreement and the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationstransactions contemplated hereby.
(ec) The Company, acting through the Company Board of DirectorsBoard, shall, in accordance with applicable law and the Company’s certificate its articles of incorporation and bylawsbylaws and with applicable Law, promptly and duly call, give notice of, convene and hold an hold, as soon as practicable following the date upon which the Proxy Statement is cleared by the SEC, a special or annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote considering and taking action upon this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b"Stockholders' Meeting"), and shall except as otherwise provided in Section 5.2(b), (i) recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), and include such recommendation in the Proxy Statement such recommendation and (ii) use its reasonable best efforts to solicit and obtain the Company Stockholder Approvalsuch adoption. Notwithstanding anything in any withdrawal, amendment or modification by the Board or any committee thereof of its recommendation of this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject 5.2(b) or the commencement, public proposal, public disclosure or communication to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approvedany Acquisition Proposal, endorsed or recommended an Acquisition Proposal any other fact or has withdrawncircumstance, modified this Agreement, unless it shall have been terminated pursuant to Section 7.1(f) or amended the Company Recommendationotherwise, will submit this Agreement for approval by shall be submitted to the stockholders of the Company at such meetingthe Stockholders' Meeting as promptly as practicable for the purpose of allowing the stockholders to vote upon adoption of this Agreement.
(fd) Notwithstanding anything Anything to the contrary contained in this Agreementnotwithstanding, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares no obligation of the Company Common Stock represented or the Board under Section 5.6(c) shall be imposed if inconsistent with or in violation of NRS 92A.120(10) or Section 3.3(e).
(either in person or by proxye) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor In accordance with NRS 92A.410, the notice of the AgreementStockholders' Meeting shall state that holders of Class B Stock may be entitled to dissenters' rights under NRS 92A.300 through 92A.500, inclusive, and be accompanied by a copy of those sections.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Promptly following the Closing Date the Company shall take all action necessary to call a meeting of its stockholders (the "Stockholders Meeting"), which shall occur not later than 120 days after the Closing Date (the "Stockholders Meeting Deadline"), for the purpose of seeking approval of the Company's stockholders for the Recapitalization (the "Proposal"). In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement relating to and form of proxy) for use at the Stockholders Meeting (the “Proxy Statement”) and, after receiving and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond responding to any comments made by of the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as thereon, shall promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of mail such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same proxy materials to the stockholders of the Company.
(b) The . Each Investor shall promptly furnish in writing to the Company will cause such information relating to such Investor and its investment in the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well Company as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it may reasonably request for inclusion in the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the "Proxy Statement") and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement and each shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto, at the time of mailing thereof and ) is first mailed to stockholders or at the time of the Stockholders Meeting, does not include an contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements thereinmade therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in light of addition to the circumstances Company's obligations under which they were madethe 1934 Act, not misleadingthe Company will promptly inform the Investors thereof.
(db) Neither The Company shall include the Company Board Recommendation in the Proxy Statement nor any amendment and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or supplement withdrawn the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw the Company Board Recommendation unless the Board of Directors (including by incorporation by referenceafter consultation with the Company's outside counsel) thereto will be filed shall determine in the good faith exercise of its business judgment that maintaining the Company Board Recommendation would violate its fiduciary duty to the Company's stockholders. Whether or disseminated not the Company's Board of Directors modifies, amends or withdraws the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Delaware General Corporation Law and the provisions of its Certificate of Incorporation and Bylaws, (i) take all action necessary to convene the Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline, to consider and vote upon the approval of the Proposal and (ii) submit the Proposal at the Stockholders Meeting to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationsfor their approval.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreement.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Company shall, in accordance with applicable law and the Certificate of Incorporation and the Bylaws of the Company duly call, give notice of, convene and hold the Company Stockholders' Meeting as promptly as practicable after the date hereof for the purpose of considering and taking action upon the adoption of this Agreement (the "Company Approval Matters"). Except as provided in Section 5.5, the Company shall use reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement pursuant to the Proxy Statement and shall take all other action reasonably necessary or advisable to secure the vote or consent of stockholders required by the DGCL or applicable stock exchange requirements to obtain such approval. Except as set forth in this Section 5.5, the Company shall take all other action reasonably necessary or advisable to promptly and expeditiously secure any vote or consent of stockholders required by applicable law and the Company's Certificate of Incorporation and Bylaws to effect the Merger.
(b) Promptly following the date of this Agreement, the Company shall prepare and file with the SEC a proxy statement relating to the Stockholders Meeting Company Approval Matters (together with any amendments thereof and any supplements thereto, the “"Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing"). Parent and the Company shall cooperate to promptly respond to any comments made by with each other in connection with the SEC and otherwise preparation of the Proxy Statement. The Company will use reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after filingthe date hereof. Parent will provide The Proxy Statement shall include (i) the recommendation of the Board of Directors of the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing Company's stockholders that they vote in favor of adoption of this Agreement, subject to the right of the Proxy Statement any event occurs that is required Board of Directors of the Company to withdraw its recommendation and recommend a Superior Proposal determined to be set forth such in an amendment or supplement compliance with Section 5.5 of this Agreement, and (ii) the opinion of UBS Warburg referred to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy StatementSection 3.18.
(c) Each The Company shall as promptly as practicable notify (and provide copies to) Parent of Parent and the receipt of any comments from the SEC relating to the Proxy Statement. All filings by the Company shall ensure that with the information provided by it for inclusion SEC in connection with the transactions contemplated hereby, including the Proxy Statement and each any amendment or supplement thereto, at shall be subject to the time prior review of mailing thereof Parent, and at all mailings to the time Company's stockholders in connection with the transactions contemplated by this Agreement shall be subject to the prior review of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleadingParent.
(d) Neither the Proxy Statement nor Unless and until this Agreement is validly terminated pursuant to Article VII, nothing herein shall limit or eliminate in any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and way the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect 's obligation to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 Stockholders' Meeting and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will at such meeting submit this Agreement for approval by and the stockholders Merger to a vote of the Company at such meeting.
Company's stockholders (f) Notwithstanding anything to the contrary contained in this Agreement, the Company may and not postpone or adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) the vote by the Company's stockholders upon this Agreement and the Merger to solicit additional proxies in favor of the Agreementanother date without Parent's approval).
Appears in 1 contract
Sources: Merger Agreement (Minimed Inc)
Proxy Statement; Stockholders Meeting. (a) The Company shall As promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereofhereof (provided, that Parent complies with its obligations in this Section 6.2), the Company shall prepare, in consultation with Parent, and in any event not later than 30 days after file with the date hereofSEC the preliminary Proxy Statement. Subject to Section 6.9(d) and Section 6.9(e), and Parent shall cooperate with such preparation and filing. Parent the Company and the Company Board shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide include the Company with any information regarding Parent or Merger Sub that may be required to prepare and file Recommendation in the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs Parent shall furnish all information concerning itself and its respective Affiliates that is required to be set forth included in an amendment or supplement to the Proxy Statement, Parent Statement or that is customarily included in proxy statements prepared in connection with transactions of the Company, as applicable, will promptly inform the other of such occurrence type contemplated by this Agreement and shall otherwise assist and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, Company in mailing the same to the stockholders preparation of the Company.
(b) Proxy Statement and the resolution of any comments thereto received from the SEC as may be reasonably requested by the Company from time to time. The Company will shall cause the Proxy Statement to comply as to form in all material respects with the applicable provisions requirements of the Exchange Act and the rules and regulations Act. Each of the SEC thereunderCompany, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company Merger Sub shall ensure that the correct any information provided by it specifically for inclusion or incorporation by reference in the Proxy Statement and each amendment as promptly as reasonably practicable if , at the date the Proxy Statement is filed with the SEC or supplement theretomailed to the Company Common Stockholders, at the time of mailing thereof and the Stockholders’ Meeting, or at the time of any amendment or supplement thereof, the Stockholders Meeting, does not include an Proxy Statement contains any untrue statement of a material fact or omit omits to state a 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.
. The Company shall use its reasonable best efforts to respond as promptly as practicable to any comments (dwritten or oral) Neither of the SEC or its staff with respect to the Proxy Statement. The Company shall promptly notify Parent upon the receipt of any comments (written or oral) from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement. Prior to filing or mailing the Proxy Statement nor (or any amendment or supplement thereto) or responding to any comments of the SEC or its staff thereto, the Company (including i) shall give Parent and its counsel a reasonable opportunity to review and comment on such document or response, (ii) shall consider any comments proposed by incorporation by reference Parent in good faith and (iii) thereto will be filed shall not file or disseminated mail such document, or respond to the stockholders of the Company without SEC or its staff, prior to receiving the approval of both Parent and the CompanyParent, which approval shall not be unreasonably withheld, delayed conditioned or conditioned; provideddelayed. The Company will cause the definitive Proxy Statement to be mailed at the earliest reasonably practicable date to the Company Common Stockholders entitled to vote at the Stockholders’ Meeting (and in any event no later than twenty (20) days before the date of the Stockholders’ Meeting). If, howeverat any time prior to the Stockholders’ Meeting, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to any information relating to the other Party Company, Parent or its businessany of their respective Affiliates, financial condition officers or results of operations; and provided, further, directors is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that the CompanyProxy Statement does not contain any untrue statement of any material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, at the time and in light of the circumstances under which they were made, not false or misleading, the party that discovers such information shall promptly notify the other party and correct such information, and the Company shall file an appropriate amendment or supplement describing such information with the SEC and, to the extent required by applicable Law, disseminate such information to the Company Common Stockholders. Except in connection with a Company Adverse Recommendation Change in the Company Recommendationaccordance with Section 6.9(d) or (e), may amend no amendment or supplement to the Proxy Statement (including shall be made by incorporation by reference) to effect such a Change in the Company Recommendationwithout the written approval of Parent, and in such event, Parent’s right of which approval shall apply only with respect to information relating to Parent not be unreasonably withheld, conditioned or its business, financial condition or results of operationsdelayed.
(b) Subject to Section 6.9(d) and (e) The Company), acting through the Company Board of Directors, shall, shall promptly conduct a “broker search” in accordance with applicable law and Rule 14a-13 of the Company’s certificate of incorporation and bylawsExchange Act. The Company shall, as promptly as practicable after the date hereof, duly call, give notice of, convene and hold an annual or special a meeting of its stockholders (the “Company Common Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement obtaining the Requisite Company Vote (the “Company Stockholder ApprovalStockholders’ Meeting”). The Company Board of Directors shall, subject ) with a record date and meeting date to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its be selected after reasonable best efforts to obtain the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance consultation with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, Parent; provided that the Company may postpone, recess or adjourn or postpone the Stockholders Meeting such meeting (i) to the extent it believes in good faith that such an adjournment required by Law or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable lawfiduciary duty, (ii) ifto allow reasonable additional time to solicit additional proxies to the extent the Company reasonably believes necessary in order to obtain the Requisite Company Vote, (iii) if as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), ) there are insufficient shares of the Company Common Stock represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business at such meeting of the Stockholders’ Meeting or (iiiiv) to allow reasonable additional time for the filing and dissemination of any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside counsel is necessary under applicable Law or fiduciary duty and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders’ Meeting. The notice of such Stockholders’ Meeting shall state that a resolution to adopt this Agreement shall be considered at the Stockholders’ Meeting. Subject to a Company Adverse Recommendation Change in accordance with Section 6.9(d) or (e), the Company shall use its reasonable best efforts to solicit additional and obtain the Requisite Company Vote. The Company shall (A) provide Parent reasonably detailed periodic updates concerning proxy solicitation results on a timely basis and (B) give written notice to Parent one (1) day prior to the Stockholders’ Meeting, and on the day of, but prior to the Stockholders’ Meeting, indicating whether as of such date sufficient proxies in favor representing the Requisite Company Vote has been obtained. Without limiting the generality of the Agreementforegoing, but subject to Section 6.9 and the Company’s rights to terminate this Agreement under the circumstances set forth in Section 8.1, the Company agrees that its obligations pursuant to this Section 6.2 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Acquisition Proposal or by any event constituting or that could constitute an Intervening Event.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The If the Company shall promptly prepare a proxy statement relating to Stockholder Approval is required under the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC DGCL, as soon as reasonably practicable following the consummation or expiration of the Offer, the Company shall, with the assistance of Parent, prepare and file with the SEC the Proxy Statement and shall respond to and resolve all SEC comments with respect to the Proxy Statement as soon as practicable after receipt thereof. Subject to applicable Laws, the date hereofCompany and Parent (with respect to itself and Merger Sub) each shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement. Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Proxy Statement which shall have become false or misleading in any material respect. The Company shall provide Parent and Merger Sub with (in writing, if written), and in shall consult with the Company regarding, any event not later than 30 days comments (written or oral) that may be received by the Company or its counsel from the SEC or its staff with respect to the Proxy Statement promptly after the date hereof, and Parent shall cooperate with such preparation and filingreceipt thereof. Parent and its counsel shall be given a reasonable opportunity to review any such written and oral comments and proposed responses before they are filed with the SEC. The Company shall cooperate to promptly respond give reasonable and good faith consideration to any comments made by the SEC Parent and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Companyits counsel.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating Subject to the other Party or its businessprovisions of this Agreement, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in if the Company RecommendationStockholder Approval is required under the DGCL, may amend as soon as reasonably practicable following the consummation or supplement expiration of the Proxy Statement (including by incorporation by reference) to effect such a Change in Offer, the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company its Board of Directors, shall, shall (i) take all action necessary in accordance with applicable law the DGCL and the Company’s certificate its Certificate of incorporation Incorporation and bylaws, Bylaws to duly call, give notice of, convene and hold an annual or special a meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement obtaining the Company Stockholder Approval (such meeting or any adjournment or postponement thereof, the “Company Stockholder ApprovalMeeting”). The ; provided, that the record date for any such Company Board Meeting shall be after the Acceptance Date, and, if the Top-Up Option is exercised by Parent, after the date on which the closing of Directors shallthe purchase of the Top-Up Option Shares occurs pursuant to Section 1.3, (ii) subject to Section 5.3(b)5.3, recommend include in the Proxy Statement the Recommendation and (iii) use reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”), include such recommendation in the Proxy Statement and use its reasonable best efforts to obtain Agreement. Once the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 Meeting has been called and subject to compliance with Section 5.3noticed, the Company, regardless of whether Company shall not postpone or adjourn the Company Board Meeting without the consent of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Parent. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be required to hold the Company Meeting if this Agreement is terminated.
(c) Notwithstanding the foregoing, if a Short-Form Merger may adjourn or postpone be effected in accordance with Section 2.7 and Section 253 of the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to DGCL, the Company’s stockholders , Parent and Merger Sub shall take all necessary and appropriate action to satisfy cause the requirements of applicable lawMerger to become effective on the dates specified in Section 2.2 without a Company Meeting, (ii) if, as in accordance with Section 253 of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the AgreementDGCL.
Appears in 1 contract
Sources: Merger Agreement (Dell Inc)
Proxy Statement; Stockholders Meeting. (a) The As promptly as practicable after the execution of this Agreement, the Company and Parent shall cooperate in preparing and the Company shall promptly prepare cause to be filed with the SEC, in connection with the Merger, a proxy statement relating to the Stockholders Meeting in preliminary form (together with any amendments or supplements thereto, the “Proxy Statement”) and shall file ). Each of the Proxy Statement with the SEC as soon as reasonably practicable after the date hereofCompany, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company Merger Sub shall cooperate to promptly respond to any comments made by the SEC and otherwise use their respective reasonable best efforts to cause furnish the information required to be included by the SEC in the Proxy Statement. The Company shall use its reasonable best efforts to have the Proxy Statement to be mailed cleared by the SEC as promptly as practicable after filing. Parent will provide The Company shall as promptly as practicable thereafter mail the Proxy Statement to its stockholders. In furtherance of the foregoing, the Company shall respond promptly to any comments with any information regarding Parent or Merger Sub that may be required respect to prepare and file the Proxy Statement. No filing of, or amendment or supplement to, the Proxy Statement will be made by the Company without providing Parent a reasonable opportunity to review and comment thereon. If at any time after the date the Proxy Statement is mailed to the Company’s stockholders and prior to the mailing Special Meeting any information relating to the Company, Parent, Merger Sub or any of their respective affiliates, officers or directors, should be discovered by the Proxy Statement any event occurs that Company, Parent or Merger Sub which is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause Statement so that the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does will not include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither , the Proxy Statement nor any party which discovers such information shall promptly notify the other parties and an appropriate amendment or supplement (including describing such information shall be promptly filed with the SEC and, to the extent required by incorporation by reference) thereto will be filed or Law, disseminated to the stockholders of the Company.
(b) All documents that the Company without is responsible for filing with the approval SEC in connection with the transactions contemplated herein will comply as to form in all material respects with applicable requirements of both the Exchange Act. The Company shall notify Parent promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between the Company or any of its Representatives, on the one hand, and the CompanySEC or the staff of the SEC, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, thaton the other hand, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in or the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationsMerger.
(ec) The Company, acting through the Company Board of DirectorsBoard, shall, in accordance with applicable law and the Company’s its certificate of incorporation and bylawsbylaws and with applicable Law, promptly and duly call, give notice of, convene and hold an annual or hold, as soon as practicable, and in no event later than 45 days after the date the Company begins mailing the Proxy Statement to its stockholders, a special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the sole purpose of adopting by requisite vote considering and taking action upon this Agreement (the “Company Stockholder ApprovalSpecial Meeting”). The Company Board of Directors , and shall, subject to except as otherwise provided in Section 5.3(b5.3(e) or Section 5.3(f) (and in compliance therewith), (i) recommend the adoption of this Agreement at by the Stockholders Meeting (the “Company Recommendation”), Company’s stockholders and include such recommendation in the Proxy Statement such recommendation and (ii) use its reasonable best efforts to solicit and obtain the Company Stockholder Approvalsuch adoption. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated any Adverse Recommendation Change in accordance with Section 7.1 and subject 5.3(e) or Section 5.3(f) or the commencement, public proposal, public disclosure or communication to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approvedany Acquisition Proposal, endorsed or recommended an Acquisition Proposal any other fact or has withdrawn, modified or amended circumstance (except for the Company Recommendation, will submit termination of this Agreement for approval by pursuant to Section 7.1), this Agreement shall be submitted to the stockholders of the Company at the Special Meeting for the purpose of adopting this Agreement. At any such meeting.
(f) Notwithstanding anything to Special Meeting following any such withdrawal, amendment or modification of the contrary contained in Board’s recommendation of this Agreement, the Company may adjourn submit this Agreement to its stockholders without a recommendation or postpone with a negative recommendation (although the Stockholders Meeting (iapproval of this Agreement by the Board may not be rescinded or amended), in which event the Board may, subject to Section 5.3(e) or Section 5.3(f), communicate the basis for its lack of a recommendation or negative recommendation to the extent it believes its stockholders in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person an appropriate amendment or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreementsupplement thereto.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) As soon as practicable after the execution of this Agreement but no later than 10 Business Days after the execution of this Agreement; provided that if the Company has not received the Manager Financial Information within the 10 Business Days after the execution of this Agreement, then no later than 5 Business Days following receipt by the Company of the Manager Financial Information, the Company shall prepare and file with the SEC the preliminary Proxy Statement. The Company shall promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond to any comments made by of the SEC or its staff and otherwise use reasonable best efforts to shall cause the Proxy Statement to be mailed as to its stockholders at the earliest practicable time after the resolution of any such comments. The Company shall (i) promptly as practicable after filing. Parent will provide the Company Investor and its counsel notice of the receipt of any written comments, and promptly inform the Investor and its counsel of the receipt of any oral comments, of the SEC with any information regarding Parent or Merger Sub that may be required respect to prepare and file the Proxy StatementStatement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to the Investor and its counsel copies of all correspondence between the Company or any representative of the Company and the SEC, (ii) give the Investor and its counsel the opportunity to review and comment upon the Proxy Statement prior to its being filed with the SEC and shall give the Investor and its counsel the opportunity to review and comment upon all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC, in each case to the extent practicable, (iii) subject to Section 5.8(b), use its commercially reasonable efforts to obtain the Stockholder Approval and (iv) use its reasonable best efforts otherwise to comply with all legal requirements applicable to such meeting. If If, at any time prior to the mailing Stockholder Meeting, any information relating to the Company, the Investor or Manager or any of their respective Affiliates, directors or officers should be discovered by the Proxy Statement any event occurs that is required to Company or Investor, which should be set forth in an amendment or supplement to the Proxy Statement, Parent Statement or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause Other Filings so that the Proxy Statement to comply as to form in all material respects with or the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company Other Filings shall advise Parent, promptly after it receives notice thereof, of not contain any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading.
(d) Neither , the Proxy Statement nor any party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement (including by incorporation by reference) thereto will describing such information shall be filed or with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement or filing the Other Filings (or, in each case, any amendment or supplement thereto) or responding to any comments of the SEC or its staff with respect thereto, the Party responsible for filing or mailing such document shall provide the other Party a reasonable opportunity to review and comment on such document or response and shall include in such document or response comments reasonably proposed by the other party. The Company without the approval of both Parent and the Company, which approval Investor shall not be unreasonably withheld, delayed or conditioned; provided, however, that, cooperate with respect to documents filed by a one another in connection with the preparation of the Proxy Statement and shall furnish all information concerning such Party that are incorporated by reference as the other Party may reasonably request in connection with the preparation of the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(eb) The Company, acting through the Company its Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, shall duly call, give notice of, convene and hold an annual or special meeting of its stockholders (as promptly as practicable the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement Meeting for the purpose of adopting considering and voting upon the issuance of the shares comprising the Stock Consideration and the Conversion Shares and shall use its commercially reasonable efforts to cause such meeting to occur as promptly as reasonably practicable. Except in the event of a Change of Board Recommendation specifically permitted by requisite vote this Agreement (Section 5.10(b), the “Proxy Statement shall include the Company Stockholder Approval”). The Company Recommendation and the Board of Directors shall, subject to Section 5.3(b), recommend of the adoption of this Agreement at the Stockholders Meeting Company (the “Company Recommendation”), include such recommendation in the Proxy Statement and all applicable committees thereof) shall use its reasonable best efforts to obtain from its stockholders the Company Stockholder ApprovalApproval in favor of the consummation of the transactions contemplated by this Agreement. Notwithstanding anything in this Agreement to the contrary, unless Unless this Agreement is validly terminated in accordance with Section 7.1 and subject its terms pursuant to compliance with Section 5.3Article 8, the Company, regardless Company shall submit the issuance of whether the Company shares comprising Stock Consideration and the Conversion Shares to its stockholders at the Stockholder Meeting even if its Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has shall have withdrawn, modified or amended qualified its recommendation thereof or otherwise effected a Change of Board Recommendation or proposed or announced any intention to do so. Subject to Section 5.10(a), the Company Recommendation, will submit this Agreement for approval by the shall take all action that is both reasonable and lawful to solicit from its stockholders proxies in favor of the Company at such meeting.
(f) issuance of the shares comprising the Stock Consideration and the Conversion Shares, and shall take all other action reasonably necessary or advisable to secure the Stockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to a date that is not more than 30 days after the original scheduled date for the Stockholders Meeting to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable lawstockholders, (ii) if, or if as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), ) there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at such meeting or (iii) to solicit additional proxies in favor of the AgreementStockholders Meeting.
(c) Except as provided for in Section 5.10(b), neither the Board of Directors of the Company nor the Special Committee shall withdraw, qualify, or modify, or publicly propose to withdraw, qualify or modify, in a manner adverse to the Investor, the Company Recommendation or the approval or declaration of advisability by the Board of Directors of the Company or the Special Committee of this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Sources: Acquisition and Investment Agreement (Deerfield Capital Corp.)
Proxy Statement; Stockholders Meeting. (a) The If the adoption of this Agreement by the stockholders of the Company is required by the DGCL, so long as the Company Board shall not have effected a Change of Recommendation, (a) the Company shall promptly take all action necessary in accordance with applicable Law and its certificate of incorporation and bylaws and the Nasdaq Marketplace Rules to call, give notice of, convene and hold a meeting of the Company’s stockholders (including any adjournment or postponement thereof, the “Company Stockholders Meeting”) as soon as is reasonably practicable following the Offer Closing for the purpose of approving this Agreement, and (b) in connection with the Company Stockholders Meeting, as soon as is reasonably practicable following the Offer Closing the Company shall prepare and file with the SEC a proxy statement relating to the Stockholders Meeting (together with all amendments and supplements thereto, the “Proxy Statement”) relating to the Merger and shall file this Agreement and furnish the Proxy Statement with information required to be provided to the SEC as soon as reasonably practicable after stockholders of the Company pursuant to the DGCL and the Exchange Act; provided, that, if upon the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and initially fixed for the Company shall cooperate Stockholders Meeting, the conditions set forth in Section 8.1(b) and Section 8.1(c) have not been met, the Company may reschedule or adjourn the Company Stockholders Meeting to promptly respond to any comments made by such later date as the SEC and otherwise use Company, in its reasonable best efforts to cause the Proxy Statement discretion, considers to be mailed as promptly as practicable after filingmore proximate to the probable satisfaction of such conditions. Parent will provide the Company with any information regarding Parent or Merger Sub that which may be required in order to prepare effectuate the preparation and file filing of the Proxy Statement. If at any time Promptly after its preparation and prior to its filing with the mailing SEC, the Company shall provide a copy of the Proxy Statement Statement, and any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent or the Companyto Parent, as applicable, and will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause consider inclusion into the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicablecomments timely received from Parent or its counsel. The Company shall advise Parent, promptly after it receives give Parent notice thereof, of any comments (whether written or oral), requests for additional information on the Proxy Statement received by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and shall promptly respond to SEC comments, if any. So long as the Company Board shall ensure that the information provided by it for inclusion in not have effected a Change of Recommendation, the Proxy Statement and each amendment or supplement thereto, at shall include the time of mailing thereof and at the time of the Stockholders Meeting, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders recommendation of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, Board that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylaws, duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of approve this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”).
(b) At the Company Stockholders Meeting or any postponement or adjournment thereof, include such recommendation Parent shall vote, or cause to be voted, all of the shares of Common Stock then owned of record by Parent or Merger Sub in favor of the Proxy Statement adoption of this Agreement and approval of the Merger, and Parent shall use its reasonable best efforts to obtain deliver or provide (or cause to be delivered or provided), in its capacity as a stockholder of the Company, any other approvals that are required by applicable Law to effect the Merger.
(c) Notwithstanding the foregoing, if following the Offer and any subsequent offering period, Parent and its Subsidiaries shall own at least ninety percent (90%) of the outstanding shares of the Common Stock (the “Short-Form Threshold”), the parties hereto shall take all necessary and appropriate action, including with respect to the transfer to Merger Sub of any shares of Common Stock held by Parent or any Subsidiary of Parent, to cause the Merger to become effective as soon as practicable after the Offer Closing without the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated Meeting in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders 253 of the Company at such meetingDGCL.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreement.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The Company shall promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement in preliminary form with the SEC as promptly as reasonably practicable following the date hereof (and in any event within forty-five (45) days after the date hereof). The Company shall use its reasonable best efforts to respond to any comments of the SEC or its staff and to clear the preliminary Proxy Statement with the SEC as soon promptly as reasonably practicable after the date hereof, and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. The Company will advise Parent promptly after receipt of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or comments thereon and responses thereto or requests by the SEC or its staff for additional information. The Company will promptly provide Parent with copies of all written correspondence between the Company (or its Representatives) and the SEC (or its staff) regarding the Proxy Statement or the Merger. If the Company (i) does not receive comments from the SEC with respect to the preliminary Proxy Statement, the Company shall cooperate to promptly respond to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be filed with the SEC in definitive form and to be mailed to the Company’s stockholders as promptly as practicable after filing. Parent will provide the expiration of the ten-day waiting period provided in Rule 14a-6(a) under the Exchange Act, or (ii) does receive comments from the SEC with respect to the preliminary Proxy Statement, the Company with any information regarding Parent or Merger Sub that may be required to prepare and file shall cause the Proxy StatementStatement to be filed with the SEC in definitive form and to be mailed to the Company’s stockholders as promptly as practicable following clearance by the SEC with respect to such comments. If at any time prior to the mailing of the Proxy Statement Company Stockholders’ Meeting there shall occur any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, Parent the Company shall as promptly as reasonably practicable prepare, file with the SEC and mail to its stockholders such an amendment or supplement, in each case as and to the Companyextent required by applicable Law. Notwithstanding anything to the contrary in this Section 5.5, as applicable, will promptly inform prior to filing or mailing the other of such occurrence and cooperate in preparing and filing such Proxy Statement (or any amendment or supplement with thereto) or responding to any comments of the SEC and(or its staff) with respect thereto, if required, the Company shall provide Parent an opportunity to review and comment on such document or response (and the Company shall consider in mailing the same to the stockholders of the Company.
(bgood faith any comments on such document(s) or response reasonably proposed by Parent or its Representatives). The Company will shall use its reasonable best efforts to cause the Proxy Statement at the date that it (and any amendment or supplement thereto) is first published, sent, or given to the Company’s stockholders and at the time of the Company Stockholders’ Meeting, to comply as to form in all material respects with the applicable provisions requirements of the Exchange Act and the rules and regulations promulgated thereunder.
(b) Each of Parent and Merger Sub shall promptly furnish the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional with all information about Parent and Merger Sub reasonably requested by the SEC, or any other material communications Company and required pursuant to the Exchange Act and the rules and regulations promulgated thereunder to be set forth in connection with the Proxy Statement.
(c) Each of the Company, Parent and ▇▇▇▇▇▇ Sub agrees to promptly (i) correct any information provided by it specifically for use in the Company shall ensure Proxy Statement if and to the extent that such information will have become false or misleading in any material respect and (ii) supplement the information provided by it specifically for inclusion use in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not to include an untrue statement of a material fact or omit to state a material fact any information that will become necessary in order to make the statements thereinin the Proxy Statement, in light of the circumstances under which they were made, not misleading. The Company further agrees to cause the Proxy Statement as so corrected or supplemented promptly to be filed with the SEC and to be disseminated to the Company’s stockholders, in each case as and to the extent required by applicable Law.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of DirectorsBoard, shall, in accordance with applicable law and the Company’s its certificate of incorporation and bylawsbylaws and with applicable Law, promptly and duly call, give notice of, convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) hold, as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (date on which the “definitive Proxy Statement is first mailed to the Company’s stockholders, the Company Stockholder Approval”). The Company Board of Directors Stockholders’ Meeting, and shall, subject to except as otherwise provided in Section 5.3(b5.2(c), (i) recommend the adoption of this Agreement at the Stockholders Meeting (the “Company Recommendation”)Agreement, and include such recommendation in the Proxy Statement such recommendation and (ii) use its reasonable best efforts to solicit and obtain the Company Stockholder Approvalsuch adoption or approval. Notwithstanding anything in this Agreement any Adverse Recommendation Change pursuant to the contrarySection 5.2(c), unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3its terms, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by shall be submitted to the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in Company Stockholders’ Meeting for the purpose of adopting this Agreement. Once the Company Stockholders’ Meeting has been called and noticed, unless this Agreement is terminated in accordance with its terms, the Company may shall not postpone or adjourn the Company Stockholders’ Meeting without the consent of Parent (which consent shall not be unreasonably withheld, conditioned or postpone the Stockholders Meeting delayed) (other than (i) for the absence of a quorum, (ii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Stockholders’ Meeting, (iii) to allow additional solicitation of votes in order to obtain the Company Required Vote or (iv) to the extent it believes in good faith that such an adjournment or postponement is otherwise advised by outside counsel to be necessary to ensure that any required supplement comply with Law). In the event of an Adverse Recommendation Change pursuant to Section 5.2(c), the Company shall submit this Agreement to its stockholders and, provided the Company Board has complied with Section 5.2(c), may do so without a recommendation or amendment with a negative recommendation (although the approval of this Agreement by the Company Board may not be rescinded or amended), in which event the Company Board may, subject to Section 5.2(c), communicate the basis for its lack of a recommendation or negative recommendation to its stockholders in the Proxy Statement or other disclosure an appropriate amendment or supplement thereto. Without limiting the generality of the foregoing, the Company agrees that unless this Agreement is provided validly terminated in accordance with Section 7.1, the Company shall not submit any Acquisition Proposal (including any Superior Proposal) to the a vote of Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies in favor of the Agreementstockholders.
Appears in 1 contract
Sources: Merger Agreement (LENSAR, Inc.)
Proxy Statement; Stockholders Meeting. (a) The As promptly as possible, but in no event later than 15 business days following the Closing, the Company shall take all action necessary to call a meeting of its stockholders (together with any adjournments or postponements thereof, the “Stockholders Meeting”) for the purpose of seeking the Required Stockholder Approval for the Proposal. In connection therewith, the Company will promptly prepare and file with the SEC proxy materials (including a proxy statement relating to the Stockholders Meeting (as amended or supplemented, the “Proxy Statement”) and shall file form of proxy) for use at the Proxy Statement with the SEC as soon as reasonably practicable Stockholders Meeting and, after the date hereof, receiving and in any event not later than 30 days after the date hereof, and Parent shall cooperate with such preparation and filing. Parent and the Company shall cooperate to promptly respond responding to any comments made by the SEC and otherwise use reasonable best efforts to cause the Proxy Statement to be mailed as promptly as practicable after filing. Parent will provide the Company with any information regarding Parent or Merger Sub that may be required to prepare and file the Proxy Statement. If at any time prior to the mailing of the Proxy Statement any event occurs that is required to be set forth in an amendment or supplement to the Proxy StatementCommission thereon, Parent or the Company, as applicable, will shall promptly inform the other of mail such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same proxy materials to the stockholders of the Company.
. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in such proxy materials; provided that no Investor shall be obliged to furnish any such information if there has been no change in such Investor’s beneficial ownership (bas defined under the Exchange Act) of Common Stock since the Closing Date. The Company will cause Proxy Statement shall not, on the date the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment thereof or supplement thereto, at the time of mailing thereof and ) is first mailed to stockholders or at the time of the Stockholders Meeting, does not include an untrue contain any statement which, at the time and in the light of a the circumstances under which it is made, is false or misleading with respect to any material fact fact, or omit which omits to state a any material fact necessary in order to make the statements therein, therein not false or misleading or necessary to correct any statement in light of the circumstances under which they were made, not misleading.
(d) Neither the Proxy Statement nor any amendment or supplement (including by incorporation by reference) thereto will be filed or disseminated to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, earlier communication with respect to documents filed by the solicitation of a Party proxy for the Stockholders Meeting or the subject matter thereof which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting any event relating to the Company or any of its affiliates, officers or directors that are incorporated by reference is required to be set forth in a supplement or amendment to the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement will promptly inform its stockholders and the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operationsInvestors thereof.
(eb) The Subject to its fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), acting through the Company's Board of Directors shall recommend to the Company's stockholders (and not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal and shall cause the Company to take all commercially reasonable action (excluding the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the Required Stockholder Approval. Whether or not the Company's Board of DirectorsDirectors determines at any time after the date hereof that, shalldue to its fiduciary duties, it must revoke or amend its recommendation to the Company’s stockholders, the Company is required to, and will take, in accordance with applicable law and the Company’s certificate its Articles of incorporation Incorporation and bylawsBylaws, duly call, give notice of, all action necessary to convene and hold an annual or special meeting of its stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (the “Company Stockholder Approval”). The Company Board of Directors shall, subject to Section 5.3(b), recommend the adoption of this Agreement at the Stockholders Meeting as promptly as practicable to consider and vote upon the approval of the Proposal.
(the “Company Recommendation”), include such recommendation in the Proxy Statement and c) Each Investor agrees to use its reasonable best efforts to obtain vote all the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contraryShares, unless this Agreement is terminated in accordance with Section 7.1 Underlying Shares (if any are outstanding) and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting (i) to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy the requirements of applicable law, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or Owned by proxy) to constitute a quorum necessary to conduct business at such meeting or (iii) to solicit additional proxies Investor in favor of the AgreementProposal.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) The As promptly as reasonably practicable following the date of this Agreement, the Company shall promptly prepare and file a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the preliminary Proxy Statement with the SEC as soon as reasonably practicable after SEC, which shall, subject to Section 6.7, include the date hereof, and in any event not later than 30 days after the date hereof, and Parent Company Recommendation. The Investor shall cooperate with such the Company in the preparation of the Proxy Statement, and shall furnish all information concerning the Investor or its Affiliates as the Company may reasonably request in the connection with the preparation and filingclearance of the Proxy Statement. Parent and the The Company shall cooperate to promptly respond to any comments made by the SEC and otherwise use its reasonable best efforts to cause have the Proxy Statement to be mailed cleared by the SEC as promptly as practicable after such filing. Parent Prior to filing or mailing the Proxy Statement or any related documents (or in each case, any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide the Investor with a reasonable opportunity to review and comment on such document or response and shall consider in good faith any comments on such document or response proposed by the Investor and, in any event, the Company agrees that all information relating to the Investor or any of its Affiliates included in the Proxy Statement, such amendments, supplements or responses shall be in form and content reasonably satisfactory to the Investor. The Company shall notify the Investor promptly (and, in any event, within 24 hours) of the receipt of any comments to the Proxy Statement from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will provide promptly (and, in any event, within 24 hours) supply the Investor with copies of all correspondence between the Company and the SEC or its staff with respect to the Proxy Statement or the Contemplated Transactions. All filings by the Company with any information regarding Parent or Merger Sub that may be required the SEC in connection with the Stockholders Meeting, and all mailings by the Company to prepare and file the Company’s stockholders (in addition to the Proxy Statement. If ) in connection therewith shall be subject to the same review and comment procedures as set forth in the foregoing sentences of this Section 6.12.
(b) If, at any time prior to the mailing Stockholders Meeting, any information relating to the Company or the Investor or any of their respective Affiliates is discovered by the Proxy Statement any event occurs Company or the Investor that is required to should be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of Statement so that such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does document would not include an untrue statement any misstatement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were are made, not misleading, the Party that discovers such information with respect to itself shall as promptly as practicable notify the other Party thereof. Following such notification, to the extent required by applicable Law, the Company shall file with the SEC an appropriate amendment or supplement describing such information as promptly as reasonably practicable after the Investor has had a reasonable opportunity to review and comment thereon, and, to the extent required by applicable Law, the Company shall disseminate such amendment or supplement to the shareholders of the Company.
(dc) Neither The Company shall, as promptly as reasonably practicable after the execution of this Agreement (but in no event later than 35 calendar days after the date the Proxy Statement nor any amendment or supplement (including is cleared by incorporation by reference) thereto will be filed or disseminated the SEC for mailing to the stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law and the Company’s certificate of incorporation and bylawsstockholders), duly call, give notice of, convene and hold an annual or special a meeting of its the Company’s stockholders (the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement seeking the Required Vote (including with respect to the “Company Stockholder Approval”issuance of the Shares, the Supplemental Equity Financing, the Amended Certificate of Incorporation and such other amendments to the Certificate of Incorporation as may be necessary or appropriate to give effect to any of the Contemplated Transactions, and any other action that may be required with respect to any of the Contemplated Transactions). The Company Board of Directors shall, subject Subject to Section 5.3(b)6.7, the Board shall recommend that the adoption of this Agreement at Company’s shareholders approve such matters reflected in the Stockholders Meeting prior sentence (the “Company Recommendation”), include such recommendation in and the Proxy Statement and Company shall, unless there has been a Change of Recommendation permitted by this Agreement, use its reasonable best efforts to obtain solicit from its shareholders proxies in favor of the Company Stockholder Approvalapproval of the Amended Certificate of Incorporation and the Contemplated Transactions and such other matters. Notwithstanding anything in this Agreement to Without limiting the contrarygenerality of the foregoing, unless this Agreement is terminated in accordance with Section 7.1 and subject its terms, such matters shall be submitted to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company for approval at such meetingthe Stockholders Meeting whether or not (x) the Board shall have effected a Change of Recommendation or (y) any Acquisition Proposal shall have been publicly proposed or announced or otherwise submitted to the Company or any of its Representatives.
(fd) Notwithstanding anything any provision of this Agreement to the contrary contained in this Agreementcontrary, the Company may adjourn shall not adjourn, recess or postpone the Stockholders Meeting or change the record date thereof except to the extent that the Company, acting in good faith after consulting with its outside legal counsel, determines that (i) to the extent it believes in good faith that such an adjournment adjournment, recess or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement or other disclosure is provided to the Company’s stockholders to satisfy of the requirements Company within a reasonable amount of applicable lawtime in advance of the Stockholders Meeting, (ii) if, as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), ) there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Stockholders Meeting or to the extent that at such meeting time the Company has not received proxies sufficient to allow the receipt of the Required Vote at the Stockholders Meeting or (iii) to solicit additional proxies such adjournment, recess or postponement is required by applicable Law; provided, that in favor the case of any postponement or adjournment (A) under clause (ii) above, the date of the AgreementStockholders Meeting shall not be postponed or adjourned by more than an aggregate of ten (10) Business Days or (B) clause (iii) above, the date of the Stockholders Meeting shall not be postponed or adjourned by more than an aggregate of ten (10) Business Days or such other amount of time reasonably agreed by the Company and the Investor to be necessary to comply with applicable Law.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Nesco Holdings, Inc.)
Proxy Statement; Stockholders Meeting. (a) The Company shall As promptly prepare a proxy statement relating to the Stockholders Meeting (the “Proxy Statement”) and shall file the Proxy Statement with the SEC as soon as reasonably practicable after the date hereofof this Agreement, the Company shall prepare and shall use its reasonable best efforts to file with the SEC the Proxy Statement in any event not preliminary form no later than 30 fifteen (15) business days after the date hereofof this Agreement. Unless the Board of Directors has made a Company Adverse Recommendation Change, the Proxy Statement shall include the Company Board Recommendation. The Company shall respond as promptly as reasonably practicable to all comments received from the SEC or its staff concerning the Proxy Statement. Except in the case of any filing made, or response provided, after a Company Adverse Recommendation Change, prior to filing the Proxy Statement (including any amendment or supplement thereto) with the SEC or responding to any comments of the SEC or its staff concerning the Proxy Statement, the Company shall afford Parent a reasonable opportunity to review and Parent shall cooperate with propose comments on such preparation and filing. Parent Proxy Statement (or such amendment or supplement thereto) or such response, and the Company shall cooperate to reasonably consider in good faith any such comments reasonably proposed by Parent. The Company shall notify Parent as promptly respond to as practicable of the Company’s receipt of any comments made (whether written or oral) from the SEC or its staff concerning the Proxy Statement or any request by the SEC for any amendment or supplement to the Proxy Statement, and otherwise the Company shall promptly provide Parent with copies of all correspondence between the Company, on the one hand, and the SEC or its staff, on the other hand, concerning the Proxy Statement. The Company shall file the definitive Proxy Statement with the SEC, and the Company shall use commercially reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s stockholders, as promptly soon as reasonably practicable after filingthe SEC confirms that it has no further comments on the Proxy Statement (or confirms that it has no comments to, or will not further review, the Proxy Statement) (such date, the “Clearance Date”) (and in any event no later than three (3) business days following the Clearance Date). Parent will provide and Merger Sub shall cooperate with the Company and its counsel in connection with the actions contemplated by this Section 5.3(a) (including the preparation, filing and distribution of the Proxy Statement and the resolution of any comments received from the SEC or its staff concerning the Proxy Statement) and shall promptly furnish to the Company and its counsel in writing any and all information regarding relating to Parent or Merger Sub that may required by the Exchange Act and the rules and regulations promulgated thereunder to be required to prepare and file set forth in the Proxy Statement. If .
(b) If, at any time after the Proxy Statement is filed with the SEC in preliminary form but prior to the mailing Stockholders Meeting, any information relating to the Company, or any of its respective Affiliates, officers or directors, is discovered by the Proxy Statement any event occurs Company that is required to should be set forth in an amendment or supplement to the Proxy Statement, Parent or the Company, as applicable, will promptly inform the other of such occurrence and cooperate in preparing and filing such amendment or supplement with the SEC and, if required, in mailing the same to the stockholders of the Company.
(b) The Company will cause Statement so that the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the SEC thereunder, as well as the regulations of the NYSE, as applicable. The Company shall advise Parent, promptly after it receives notice thereof, of any comments (whether written or oral), requests for additional information by the SEC, or any other material communications in connection with the Proxy Statement.
(c) Each of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, does not include contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, therein (in light of the circumstances under which they were made, ) not misleading.
(d) Neither , the Proxy Statement nor any Company shall promptly notify Parent, and, to the extent required by Legal Requirements, an appropriate amendment or supplement (including by incorporation by reference) thereto will describing such information shall be promptly filed or with the SEC and disseminated to the Company’s stockholders of the Company without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, delayed or conditioned; provided, however, that, with respect to documents filed by a Party that are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement (including by incorporation by reference) to effect such a Change in the Company Recommendation, and in such event, Parent’s right of approval shall apply only with respect to information relating to Parent or its business, financial condition or results of operations.
(e) The Company, acting through the Company Board of Directors, shall, in accordance with applicable law Legal Requirements.
(c) Subject to applicable Legal Requirements and to the Company’s certificate of incorporation and bylawsextent not prohibited by any Order, the Company shall, use its reasonable best efforts to duly call, give notice of, convene and hold an annual or special hold, no later than forty (40) days after the Clearance Date, a meeting of its stockholders the holders of record of Shares (such meeting, including any adjournment, recess or postponement thereof, the “Stockholders Meeting”) as soon as reasonably practicable following execution of this Agreement for the purpose of adopting by requisite vote this Agreement (i) obtaining the “Company Stockholder Approval”), (ii) if applicable, the advisory vote required by Rule 14a-21(c) under the Exchange Act, and (iii) if applicable, voting on a proposal to adjourn as permitted below. The Company shall not submit any other proposals for approval at the Stockholders Meeting without the prior written consent of Parent. Unless the Board of Directors shallhas made a Company Adverse Recommendation Change to the extent permitted by this Agreement, subject to Section 5.3(b), recommend the Company shall use reasonable best efforts to: (i) solicit from the holders of record of Shares proxies for the Stockholders Meeting in favor of the adoption of this Agreement at and approval of the Stockholders Meeting Transactions and (ii) take all other actions necessary or advisable to secure the “vote or consent of the holders of record of Shares to obtain such adoption and approval. The Company Recommendation”), include such recommendation in shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement and use to its reasonable best efforts to obtain stockholders The Company shall not, without the Company Stockholder Approval. Notwithstanding anything in this Agreement to the contraryprior written consent of Parent, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 5.3, the Company, regardless of whether the Company Board of Directors has approved, endorsed or recommended an Acquisition Proposal or has withdrawn, modified or amended the Company Recommendation, will submit this Agreement for approval by the stockholders of the Company at such meeting.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company may adjourn or postpone the Stockholders Meeting; provided that the Company may, without the prior written consent of Parent, but after good faith consultation with Parent, and shall at the request of Parent, cause the chairman of the Stockholders Meeting to adjourn or postpone the Stockholders Meeting: (iA) if and to the extent it believes in good faith that such an adjournment or postponement is necessary to ensure that required by an Order issued by any required supplement or amendment to the Proxy Statement court or other disclosure is provided to the Company’s stockholders to satisfy the requirements Governmental Body of applicable lawcompetent jurisdiction in connection with this Agreement, (iiB) if, as for the absence of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Stockholders Meeting, or (C) to allow the solicitation of additional proxies if the Company reasonably determines that it has not received proxies representing a sufficient number of Shares to obtain the Stockholder Approval; provided that (x), other than pursuant to the foregoing clause (A), in no event shall the Stockholders Meeting be adjourned or postponed, without the prior written consent of the Company and Parent, for a period of more than thirty (30) days after the date on which the Stockholders Meeting was originally scheduled or for a date that is later than ten (10) business days before the End Date and (y) the Company shall cause the announcement at the original meeting of the time and place of the adjourned meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting or (iii) to solicit additional proxies in favor of the Agreementadjourned meeting.
Appears in 1 contract
Sources: Merger Agreement (Conformis Inc)