Securities Issuances. (a) The shares of Parent Common Stock to be issued in connection with the Merger are expected to be securities exempt from registration under the Securities Act by reason of Section 3(a)(10) thereof and are intended to be issued pursuant to a fairness hearing (the "Hearing") conducted pursuant to Section 25142 of the California Corporate Securities Laws of 1968, as amended (the "California Law") and under applicable state blue sky laws. Subject to this Section 5.2, Parent shall use commercially reasonable efforts to file with the California Department of Corporations (the "Department"), as promptly as practical after the execution of this Agreement (and in no event later than 14 days following the date hereof) an Application for Qualification of Securities under Section 25121 of the California Law, a proposed Notice of the Hearing and a request for the Hearing to be held by the Department to consider the terms, conditions and fairness of the transactions contemplated by this Agreement and the Merger pursuant to Section 25142 of the California Law including all required exhibits thereto (the "Application"). Parent and Company shall use commercially reasonable efforts to obtain a permit pursuant to Section 25121 of the California Law and the Application to issue such shares (the "Permit") as promptly as practicable (and in no event later than 51 days following the date hereof). (b) Parent shall use commercially reasonable efforts to prepare, with the cooperation of the Company, as promptly as practicable after the execution of this Agreement (and in no event later than 14 days following the date hereof) the Application. Parent and the Company shall each use commercially reasonable efforts to cause the Permit Application to comply with the requirements of applicable federal and state laws. Each of Parent and the Company agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Application, or in any amendments or supplements or exhibits thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Application. The Company will promptly advise Parent, and Parent will promptly advise the Company, in writing if at any time prior to the Effective Time either the Company or Parent shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Application in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable law. Anything to the contrary contained herein notwithstanding, Parent shall not include in the Application any information with respect to the Company or its affiliates or associates, the form and content of which information shall not have been approved by the Company prior to such inclusion. Each party shall cause an officer of such party who has been substantively involved with the negotiations of the Merger to attend and participate in the Hearing. (c) The Company shall use commercially reasonable efforts to prepare, with the cooperation of Parent, as promptly as practicable (but in no event later than 14 days following the date hereof) an information statement to be sent to stockholders of Company in connection with their consideration of approval of the Merger and this Agreement (as amended or supplemented, the "Information Statement"). The Information Statement shall constitute a disclosure document for the offer and issuance of the shares of Parent Common Stock to be received by the holders of Company Capital Stock in the Merger. Parent and the Company shall each use commercially reasonable efforts to cause the Information Statement to comply with applicable federal and state securities laws requirements. Each of Parent and the Company agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Information Statement, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Information Statement. The Company will promptly advise Parent, and Parent will promptly advise the Company, in writing if at any time prior to the Effective Time either the Company or Parent shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Information Statement in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable law. The Information Statement shall contain the recommendation of the Board of Directors of the Company that the Company stockholders approve the Merger and this Agreement and the conclusion on the Board of Directors that the terms and conditions of the Merger are advisable and fair and reasonable to the shareholders of the Company. Anything to the contrary contained herein notwithstanding, the Company shall not include in the Information Statement any information with respect to Parent or its affiliates or associates, the form and content of which information shall not have been approved by Parent prior to such inclusion. (d) Company and Parent will notify each other promptly of the receipt of any comments from the Department or its staff and of any request by the Department or any other government officials for amendments or supplements to any of the documents filed therewith or any other filing or for additional information and will supply each other with copies of all correspondence between such party or any of its representatives, on the one hand, and the Department, or its staff or any other government officials, on the other hand, with respect to the filing. (e) The information supplied by the Company for inclusion in the Application shall not at the time the Hearing is held and the time the qualification of such securities is effective under Section 25122 of the California Law contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The information supplied by the Company for inclusion in the Information Statement shall not, on the date the Information Statement is first mailed to the Company's stockholders, at the time of the Company Stockholders Consent and at the Effective Time, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, 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 for the Company Stockholders Consent which has become false or misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to any information supplied by Parent or Merger Sub which is contained in the Application or the Information Statement. (f) The information supplied by Parent and Merger Sub for inclusion in the Application shall not, at the time the Hearing is held and the time the qualification of such securities is effective under Section 25122 of the California Law, contain any untrue statement of (g) In the event that, (i) within thirty-five (35) days after the date hereof the Department has not scheduled a date for the Hearing or (ii) the Hearing has not been held and concluded and the Permit has not been issued by the Department on or within fifty-one (51) days after the date hereof, then, in each case at the Company's election, Parent shall immediately commence efforts to prepare with the cooperation of Company, and file, with the SEC a registration statement of Form S-4 (as amended and supplemented, the "Registration Statement") in which the Information Statement shall be included as part of a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the stockholders of the Company pursuant to the Merger. The Parent shall (i) file the Registration Statement as promptly as reasonable practicable, and in any event no later than twenty-one (21) days after the date Parent is requested in writing to commence preparation of the Registration Statement pursuant to this Section 5.2(g), and (ii) shall use commercially reasonable efforts to have or cause the Registration Statement to become effective as promptly as practicable, and shall take any action required under any applicable federal or state securities laws in connection with the issuance of shares of Parent Common Stock pursuant to the Merger. The Company shall furnish all information concerning the Company as Parent may reasonably request in connection with such actions and the preparation of the Registration Statement. Parent shall furnish all information concerning Parent and Merger Sub as the Company may reasonably request in connection with such actions and the preparation of the Information Statement. As promptly as practicable after the Registration Statement shall have become effective, the Company shall mail the Information Statement to its stockholders. (h) The Registration Statement and the information supplied by Parent for inclusion in the Information Statement shall not, at (i) the time the Registration Statement is declared effective by the SEC; (ii) the time the Information Statement is first mailed to the stockholders of the Company; (iii) the time of the Company Stockholders Consent; and (iv) the Effective Time, 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 not misleading. If at any time prior to the Effective Time any event or circumstance relating to Parent or any of its subsidiaries, or their respective officers or directors, should be discovered by Parent which should be set forth in amendment or a supplement to the Registration Statement or Information Statement, Parent shall promptly inform the Company. The Registration Statement and Information Statement shall comply in all material respects as to form and substance with the requirements of the Securities Act, the Exchange Act and the rules and regulations thereunder. Notwithstanding the foregoing, Parent and Merger Sub make no representation or warranty with respect to any information supplied by the Company which is contained, or furnished in connection with the preparation of, any of the foregoing documents. (i) The Information Statement and the information supplied by the Company for inclusion in the Registration Statement shall not, at (i) the time the Registration Statement is declared effective by the SEC; (ii) the time the Information Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders the Company; (iii) the time of the Consent Solicitation; and (iv) the Effective Time, 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 not misleading. If at any time prior to the Effective Time any event or circumstance relating to the Company, or its officers or directors, should be discovered by the Company which should be set forth in an amendment or supplement to the Registration Statement or Information Statement, the Company shall promptly inform Parent. The Information Statement shall comply in all material respects as to form and substance with the requirements of the Securities Act, the Exchange Act and the rules and regulations thereunder. The Information Statement shall contain the recommendation of the Board of Directors of the Company that the Company stockholders approve the Merger and this Agreement and the conclusion on the Board of Directors that the terms and conditions of the Merger are advisable and fair and reasonable to the shareholders of the Company. Notwithstanding the foregoing, the Company makes no representations or warranty with respect to any information supplied by Parent or Merger Sub which is contained in, or furnished in connection with the preparation of, any of the foregoing documents.
Appears in 1 contract
Sources: Merger Agreement (Ariba Inc)
Securities Issuances. (a) The shares of Parent Acquiror Common Stock to be issued in connection with the Merger are expected to be securities issued in a transaction exempt from registration under the Securities Act by reason of Section 3(a)(10) thereof and are intended to be issued pursuant to a fairness hearing (the "Hearing") conducted pursuant to under Section 25142 of the California Corporate Securities Laws of 1968, as amended (the "California Law") and under applicable state blue sky laws. Subject to Promptly following the execution of this Section 5.2Agreement, Parent but in no event later than 15 business days Target and Acquiror shall use commercially reasonable efforts to prepare, and Acquiror shall file with the California Department of Corporations (the "Department"), as promptly as practical after the execution of this Agreement (and in no event later than 14 days following the date hereof) an Application for Qualification of Securities under Section 25121 of the California Law, a proposed Notice of the Hearing ("Application") and a request for the Hearing to be held by the Department to consider the terms, conditions and fairness of the transactions contemplated by this Agreement and the Merger pursuant to Section 25142 of the California Law including all required exhibits thereto (the "Application")Law. Parent Target and Company shall use commercially reasonable efforts to obtain a permit pursuant to Section 25121 of the California Law and the Application to issue such shares (the "Permit") as promptly as practicable (and in no event later than 51 days following the date hereof).
(b) Parent shall use commercially reasonable efforts to prepare, with the cooperation of the Company, as promptly as practicable after the execution of this Agreement (and in no event later than 14 days following the date hereof) the Application. Parent and the Company shall each use commercially reasonable efforts to cause the Permit Application to comply with the requirements of applicable federal and state laws. Each of Parent and the Company agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Application, or in any amendments or supplements or exhibits thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Application. The Company will promptly advise Parent, and Parent will promptly advise the Company, in writing if at any time prior to the Effective Time either the Company or Parent shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Application in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable law. Anything to the contrary contained herein notwithstanding, Parent shall not include in the Application any information with respect to the Company or its affiliates or associates, the form and content of which information shall not have been approved by the Company prior to such inclusion. Each party shall cause an officer of such party who has been substantively involved with the negotiations of the Merger to attend and participate in the Hearing.
(c) The Company shall use commercially reasonable efforts to prepare, with the cooperation of Parent, as promptly as practicable (but in no event later than 14 days following the date hereof) an information statement to be sent to stockholders of Company in connection with their consideration of approval of the Merger and this Agreement (as amended or supplemented, the "Information Statement"). The Information Statement shall constitute a disclosure document for the offer and issuance of the shares of Parent Common Stock to be received by the holders of Company Capital Stock in the Merger. Parent and the Company shall each use commercially reasonable efforts to cause the Information Statement to comply with applicable federal and state securities laws requirements. Each of Parent and the Company agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Information Statement, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other's counsel and auditors in the preparation of the Information Statement. The Company will promptly advise Parent, and Parent will promptly advise the Company, in writing if at any time prior to the Effective Time either the Company or Parent shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Information Statement in order to make the statements contained or incorporated by reference therein not misleading or to comply with applicable law. The Information Statement shall contain the recommendation of the Board of Directors of the Company that the Company stockholders approve the Merger and this Agreement and the conclusion on the Board of Directors that the terms and conditions of the Merger are advisable and fair and reasonable to the shareholders of the Company. Anything to the contrary contained herein notwithstanding, the Company shall not include in the Information Statement any information with respect to Parent or its affiliates or associates, the form and content of which information shall not have been approved by Parent prior to such inclusion.
(d) Company and Parent Acquiror will notify each other promptly of the receipt of any comments from the Department or its staff and of any request by the Department or any other government officials for amendments or supplements to any of the documents filed therewith or any other filing or for additional information and will supply each other with copies of all correspondence between such party or any of its representatives, on the one hand, and the Department, or its staff or any other government officials, on the other hand, with respect to the filing.
(e) . The information supplied relating to Target and Acquiror included in the notice sent to the Stockholders of Target pursuant to, and meeting the requirements of Article 2 of Subchapter 1 of the California Administrative Code, Title 10, Chapter 3, Subchapter 2, as amended (the "Hearing Notice"), concerning the Hearing held by the Company California Commissioner of Corporations (the "Commissioner") to consider the terms, conditions and fairness of the transactions contemplated hereby pursuant to Section 25142 of the California Law and the application for inclusion permit filed with the Commissioner in connection with the Application Hearing, shall not not, at the time the Hearing Notice is held and mailed to Stockholders of Target, at the time the qualification Information Statement is mailed to Stockholders of such securities is effective under Section 25122 of Target and at all times subsequent hereto (through and including the California Law Effective Date), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The information supplied by the Company for inclusion in the Information Statement shall not, on the date the Information Statement is first mailed to the Company's stockholders, at the time of the Company Stockholders Consent and at the Effective Time, contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, 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 for the Company Stockholders Consent which has become false or misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to any information supplied by Parent or Merger Sub which is contained in the Application or the Information Statement.
(f) The information supplied by Parent and Merger Sub for inclusion in the Application shall not, at the time the Hearing is held and the time the qualification of such securities is effective under Section 25122 of the California Law, contain any untrue statement of
(g) In the event that, (i) within thirty-five (35) days after the date hereof the Department has not scheduled a date for the Hearing or (ii) the Hearing has not been held and concluded and the Permit has not been issued by the Department on or within fifty-one (51) days after the date hereof, then, in each case at the Company's election, Parent shall immediately commence efforts to prepare with the cooperation of Company, and file, with the SEC a registration statement of Form S-4 (as amended and supplemented, the "Registration Statement") in which the Information Statement shall be included as part of a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock to be issued to the stockholders of the Company pursuant to the Merger. The Parent shall (i) file the Registration Statement as promptly as reasonable practicable, and in any event no later than twenty-one (21) days after the date Parent is requested in writing to commence preparation of the Registration Statement pursuant to this Section 5.2(g), and (ii) shall use commercially reasonable efforts to have or cause the Registration Statement to become effective as promptly as practicable, and shall take any action required under any applicable federal or state securities laws in connection with the issuance of shares of Parent Common Stock pursuant to the Merger. The Company shall furnish all information concerning the Company as Parent may reasonably request in connection with such actions and the preparation of the Registration Statement. Parent shall furnish all information concerning Parent and Merger Sub as the Company may reasonably request in connection with such actions and the preparation of the Information Statement. As promptly as practicable after the Registration Statement shall have become effective, the Company shall mail the Information Statement to its stockholders.
(h) The Registration Statement and the information supplied by Parent for inclusion in the Information Statement shall not, at (i) the time the Registration Statement is declared effective by the SEC; (ii) the time the Information Statement is first mailed to the stockholders of the Company; (iii) the time of the Company Stockholders Consent; and (iv) the Effective Time, 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 not misleading. If at any time prior to the Effective Time any event or circumstance relating to Parent or any of its subsidiaries, or their respective officers or directors, information should be discovered by Parent which should be set forth in amendment Target or a supplement to the Registration Statement or Information Statement, Parent shall promptly inform the Company. The Registration Statement and Information Statement shall comply in all material respects as to form and substance with the requirements of the Securities Act, the Exchange Act and the rules and regulations thereunder. Notwithstanding the foregoing, Parent and Merger Sub make no representation or warranty with respect to any information supplied by the Company which is contained, or furnished in connection with the preparation of, any of the foregoing documents.
(i) The Information Statement and the information supplied by the Company for inclusion in the Registration Statement shall not, at (i) the time the Registration Statement is declared effective by the SEC; (ii) the time the Information Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders the Company; (iii) the time of the Consent Solicitation; and (iv) the Effective Time, 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 not misleading. If at any time prior to the Effective Time any event or circumstance relating to the Company, or its officers or directors, should be discovered by the Company Acquiror which should be set forth in an amendment to the Hearing Notice or supplement the Permit (as defined below) application, such party shall promptly inform the other. The parties shall use their respective commercially reasonable efforts to have a permit (the "Permit") issued under the California Law as promptly as practicable after the filing of the Application and shall fully cooperate with each other in good faith to assist in such efforts.
(b) If despite Target's and Acquiror's commercially reasonable efforts to obtain a permit, Acquiror and Target are unable to obtain a date for the Hearing ("Hearing Date") within 15 days after the filing of the Application with the Department or the Application is denied; or the Department refuses to set a Hearing Date or issue the permit; or the Permit is otherwise determined to be unavailable in the judgment of counsel to Target and Acquiror, then Acquiror shall use all commercially reasonable efforts to effect as soon as practicable but in no event later than 15 business days after events stated in this Section 5.2(b) a Registration Statement (the "Registration Statement") on Form S-4 (or such other or successor form as shall be appropriate) with respect to the shares of Acquiror Common Stock to be issued in the, Merger, which complies in form with applicable SEC requirements and shall use all reasonable efforts to cause the Registration Statement to become effective as soon thereafter as practicable. The Acquiror agrees to request the immediate acceleration of the effectiveness of the Registration Statement as soon as practicable but no less than within three (3) business days of any notification by the SEC of its decision not to review the Registration Statement or Information Statement, the Company shall promptly inform Parent. The Information Statement shall comply in all material respects as to form and substance with the requirements its determination that it has completed its review of the Securities Act, Registration Statement and has no further comments for the Exchange Act and the rules and regulations thereunder. The Information Statement shall contain the recommendation of the Board of Directors of the Company that the Company stockholders approve the Merger and this Agreement and the conclusion on the Board of Directors that the terms and conditions of the Merger are advisable and fair and reasonable to the shareholders of the Company. Notwithstanding the foregoing, the Company makes no representations or warranty with respect to any information supplied by Parent or Merger Sub which is contained in, or furnished in connection with the preparation of, any of the foregoing documentsAcquiror.
Appears in 1 contract
Sources: Merger Agreement (Ariba Inc)