Approval of the Company Stockholders. (a) As soon as practicable after the date the California Commissioner issues the Permit or, in the event that Parent files the registration statement on Form S-4 pursuant to Section 6.1(e), as soon as practicable after the declaration of effectiveness of the registration statement on Form S-4 (and in any event, to the extent permissible under applicable law, within ten (10) days), the Company shall take all action necessary in accordance with this Agreement, Delaware Law, (and California Law, if applicable) and the Certificate of Incorporation and Bylaws of the Company to obtain the Requisite Stockholder Approval for the adoption of this Agreement and approval of the Merger and the other transactions contemplated by this Agreement. The Company’s obligation to obtain the Requisite Stockholder Approval shall not be limited to or otherwise affected by the commencement, disclosure, announcement or submission to the Company of any Acquisition Proposal or any subsequent action by the Company’s Board of Directors. (i) The Company’s Board of Directors shall unanimously recommend (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of the approval of the Merger and adoption of this Agreement; (ii) subject to the provisions of the second sentence of this Section 6.2(b), any information statement or other disclosure document distributed to the Company Stockholders in connection with this transaction shall include a statement to the effect that the Company’s Board of Directors has unanimously recommended (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of and approve and adopt this Agreement and approve the Merger; and (iii) subject to the provisions of the second sentence of this Section 6.2(b), neither the Company’s Board of Directors nor any committee thereof shall withhold, withdraw, amend or modify, or propose or resolve to withhold, withdraw, amend or modify in a manner adverse to Parent, the unanimous (acting without the participation of Dxxxx Xxxxxx) recommendation of the Company’s Board of Directors that the Company Stockholders vote in favor of the approval of the Merger and adoption of this Agreement. Notwithstanding the foregoing, prior to receipt by the Company of the Requisite Stockholder Approval approving the Merger and adopting this Agreement, the Company’s Board of Directors may withhold, withdraw, amend or modify its recommendation to the Company Stockholders if (i) it receives an unsolicited written Acquisition Proposal and reasonably concludes in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated (taking into account all legal, financial and regulatory aspects of the proposal, the likelihood of the proposal being financed and the Person making the proposal), and would, if consummated, result in a transaction more favorable to the Company Stockholders from a financial point of view than the Merger and (ii) it reasonably concludes in good faith (following the receipt of advice from outside counsel) that modification or withdrawal of its recommendation is required in order to comply with its fiduciary obligations to the Company Stockholders under Delaware Law and California Law, as applicable (a “Superior Proposal”).
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Approval of the Company Stockholders. (a) As soon as practicable 5.12.1 Promptly after the date the California Commissioner issues the Permit or, in the event that Parent files the registration statement on Form S-4 pursuant to Section 6.1(e), as soon as practicable after the declaration of effectiveness of the registration statement on Form S-4 (and in any event, to the extent permissible under applicable law, within ten (10) days)Agreement Date, the Company shall take all action necessary in accordance with this Agreement, the Delaware Law, (and the California Law, if applicable) , and the Certificate of Incorporation and Bylaws of the Company to obtain the Requisite Stockholder Approval written consent of the Company Stockholders for the approval and adoption of this Agreement and the Company Ancillary Agreements and approval of the Merger and the other transactions contemplated by this Agreement, including the approval of the Restated Certificate (the "Company Stockholder Approval"). The Company’s obligation to obtain the Requisite Stockholder Approval shall not be limited to or otherwise affected by the commencement, disclosure, announcement or submission to the Company of any Acquisition Proposal Alternative Transaction or any subsequent action by Superior Offer (as defined below) shall not limit the Company’s Board 's obligation to call a meeting of Directorsthe Company Stockholders or solicit the written consent of the Company Stockholders to obtain the Company Stockholder Approval.
(i) 5.12.2 The Company’s 's Board of Directors shall unanimously recommend (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of the approval of the Merger and adoption of this Agreement; (ii) subject to the provisions of the second sentence of this Section 6.2(b), any information statement or other disclosure document distributed to the Company Stockholders in connection with this transaction shall include a statement to the effect that the Company’s Board of Directors has unanimously recommended (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of and approve and adopt this Agreement and the Company Ancillary Agreements and approve the Merger in connection with obtaining the Company Stockholder Approval. The Information Statement shall include a statement to the effect that the Board of Directors of the Company has unanimously recommended that the Company Stockholders vote in favor of and approve and adopt this Agreement and the Company Ancillary Agreements and approve the Merger; and (iii) subject to the provisions of the second sentence of this . Except as otherwise provided in Section 6.2(b)5.12.3, neither the Company’s 's Board of Directors nor any committee thereof shall withhold, withdraw, amend or modify, or propose or resolve to withhold, withdraw, amend or modify modify, in a manner adverse to ParentAcquirer, the unanimous (acting without the participation of Dxxxx Xxxxxx) recommendation of the Company’s 's Board of Directors that the Company Stockholders vote in favor of and approve and adopt this Agreement and the approval Company Ancillary Agreements and approve the Merger.
5.12.3 Nothing herein shall prevent the Company's Board of Directors from withdrawing, amending or modifying its recommendation in favor of the Merger and adoption of this Agreement. Notwithstanding the foregoing, prior to receipt by the Company of the Requisite Stockholder Approval approving the Merger and adopting this Agreement, the Company’s Board of Directors may withhold, withdraw, amend or modify its recommendation to the Company Stockholders if (i) it receives an unsolicited a Superior Offer is made to the Company and is not withdrawn, (ii) the Company shall have provided written Acquisition Proposal notice to Acquirer (a "Notice of Superior Offer") advising Acquirer that the Company has received a Superior Offer, specifying all of the material terms and reasonably conditions of such Superior Offer and identifying the person making such Superior Offer, (iii) the Company's Board of Directors concludes in good faith faith, after consultation with its outside legal counsel, that in light of such Acquisition ProposalSuperior Offer the withdrawal, if accepted, is reasonably likely to be consummated (taking into account all legal, financial and regulatory aspects amendment or modification of the proposal, the likelihood of the proposal being financed and the Person making the proposal), and would, if consummated, result in a transaction more favorable to the Company Stockholders from a financial point of view than the Merger and (ii) it reasonably concludes in good faith (following the receipt of advice from outside counsel) that modification or withdrawal of its such recommendation is required in order for the Company's Board of Directors to comply with its fiduciary obligations to the Company Stockholders under Delaware Law Applicable Laws, and California Law(iv) the Company shall not have violated any of the restrictions set forth in Section 5.7. The Company shall provide Acquirer with at least two business days prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider any Alternative Transaction to determine whether such Alternative Transaction is a Superior Offer. Nothing contained in this Section 5.12.3 shall limit the Company's obligation to call a meeting of the Company Stockholders or solicit the written consent of the Company Stockholders to obtain the Company Stockholder Approval, as applicable regardless of whether the recommendation of the Company's Board of Directors shall have been withdrawn, amended or modified. "Superior Offer" means an unsolicited, bona fide written offer made by a third party to consummate any of the following transactions: (i) a “merger or consolidation involving the Company pursuant to which the stockholders of the Company immediately preceding such transaction hold less than 50% of the equity interests in the surviving or resulting entity of such transaction; or (ii) the acquisition by any person (including by way of a tender offer or an exchange offer or a two-step transaction involving a tender offer followed with reasonable promptness by a merger involving the Company), directly or indirectly, of ownership of 100% of the then outstanding shares of Company Capital Stock, on terms that the Company's Board of Directors determines, in its reasonable judgment (based on the written advice of a financial advisor of national standing), to be more favorable to the Company Stockholders than the terms of the Merger; provided, however, that any such offer shall not be deemed to be a "Superior Proposal”)Offer" if any financing required to consummate the transaction contemplated by such offer is not committed or is not otherwise likely in the reasonable judgment of the Company's Board of Directors (based on the advice of a financial advisor of national standing) to be obtained by such third party on a timely basis.
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Approval of the Company Stockholders. (a) As soon as reasonably practicable after the date execution of this Agreement, Parent shall prepare, with the California Commissioner issues full cooperation of the Permit orCompany, the Information Statement, and if the Company holds a stockholders’ meeting (the “Company Stockholders Meeting”), a proxy statement, in form and substance reasonably acceptable to Parent, the Company and the LLC with respect to the solicitation of written consents and/or proxies from the stockholders of the Company to approve the Recapitalization Merger Agreement, the Recapitalization Merger, this Agreement, the Merger and related matters. Parent, the Company and the LLC shall each use commercially reasonable efforts to cause the Information Statement to comply with applicable federal and state securities laws requirements. Each of Parent, the Company and the LLC 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. Each of Parent, the Company and the LLC will promptly advise the others, in writing if at any time prior to the Effective Time either the Company, Parent or the LLC, as applicable, 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, in the light of the circumstances under which they were made, not misleading or to comply with applicable law. The Information Statement shall contain the unanimous recommendation of the board of directors of the Company that the Company’s stockholders approve the Recapitalization Merger Agreement, the Recapitalization Merger, the Merger and this Agreement and the conclusion of the board of directors that the terms and conditions of the Recapitalization Merger and the Merger are advisable and fair and reasonable to, and in the best interests of, the stockholders of the Company; provided however, that the Company’s board of directors shall not be precluded from recommending a Superior Transaction if the board has complied with Section 6.2.
(b) As soon as reasonably practicable after the execution of this Agreement, Parent shall prepare, with the full cooperation of the Company and the LLC, and file the Permit Application and a request for a Fairness Hearing to consider the terms, conditions and fairness of the transactions contemplated by the Recapitalization Merger Agreement, the Recapitalization Merger, this Agreement and the Merger. Parent, the Company and the LLC shall each use commercially reasonable efforts to cause the Permit Application to comply with the requirements of applicable federal and state laws. To the extent permitted by applicable law, such Permit Application shall include the shares of Parent Common issuable to BCC pursuant to the BCC Restructuring Agreement. Each of Parent, the Company and the LLC agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Permit Application, or in any amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other’s counsel and auditors in the preparation and completion of the Permit Application. Each of Parent, the Company and the LLC will promptly advise the others, in writing if at any time prior to the Effective Time either the Company or Parent, as applicable, shall obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the Permit Application in order to make the statements contained or incorporated by reference therein, in the light of the circumstances under which they were made, not misleading or to comply with applicable law.
(c) In the event that the Commissioner of Corporations of the State of California (the “Commissioner”) informs Parent, the Company or the LLC of the Commissioner’s determination not to (i) grant the Fairness Hearing or (ii) issue the California Permit, then Parent, the Company and the LLC shall use commercially reasonable efforts to effect the Recapitalization Merger and the issuance of the shares of Parent files the registration statement on Form S-4 Common to be issued pursuant to Section 6.1(e2.1(d) and Section 2.11 hereof in a private placement pursuant to section 4(2) of the Securities Act on terms and conditions that are reasonably satisfactory to Parent, the Company and the LLC. The parties hereto acknowledge and agree that in such event: (i) as a condition to effecting such issuance as a private placement pursuant to section 4(2) of the Securities Act, Parent, the Company and the LLC shall be entitled to obtain from each stockholder of the Company a Stockholder Certificate in the form attached hereto as Exhibit B (or such other form as shall be reasonably satisfactory to Parent) (the “Stockholder Certificate”) and that Parent, the Company and the LLC will be relying upon the representations made by each stockholder of the Company in the applicable Stockholder Certificate in connection with the issuance of Parent Common and LLC Membership Interests to such stockholder, (ii) at the Closing, Parent shall execute and deliver a backup registration rights agreement in the form attached hereto as Exhibit D (the “Backup Registration Rights Agreement”); (iii) the shares of Parent Common so issued pursuant to Section 2.1(d) and Section 2.11, and the LLC Membership Interests in the Recapitalization Merger will not be registered under the Securities Act and will constitute “restricted securities” within the meaning of the Securities Act; and (iv) the certificates representing the shares of Parent Common shall bear appropriate legends to identify such privately placed shares as being restricted under the Securities Act, to comply with applicable state securities laws and, if applicable, to notice the restrictions on transfer of such shares.
(d) As soon as reasonably practicable following the execution and delivery of this Agreement (and issuance of the California Permit pursuant to Section 7.1(b), if applicable), or if the California Permit is not issued pursuant to Section 7.1(b), the time at which Parent, the Company and the LLC agree on private placement terms as soon as practicable after the declaration of effectiveness of the registration statement on Form S-4 (and provided for in any event, to the extent permissible under applicable law, within ten (10) daysSection 7.1(c), the Company shall give written notice of the Recapitalization Merger Agreement, the proposed Recapitalization Merger, this Agreement and the proposed Merger to all Company stockholders and shall use commercially reasonable efforts to take all other action necessary in accordance with this the DGCL and its Restated Certificate of Incorporation and bylaws in connection with the Company Stockholder Action. In soliciting written consents or proxies in connection with the Company Stockholder Action, the Board of Directors of the Company will recommend to the stockholders of the Company that they approve the Recapitalization Merger Agreement, Delaware Lawthe Recapitalization Merger, (this Agreement and California Lawthe Merger and the Company shall use its best efforts to obtain the approval of the stockholders of the Company entitled to vote on or consent to approve the Recapitalization Merger Agreement, if applicable) the Recapitalization Merger, this Agreement and the Merger in accordance with the DGCL and the Company’s Restated Certificate of Incorporation, including the amendment of the Company’s Fifth Amended and Restated Certificate of Incorporation and to approve the items necessary to prevent any payments or acceleration of stock options in connection with this Agreement from giving rise to a “parachute payment” under section 280G of the Code. The Company shall submit the Recapitalization Merger Agreement, the Recapitalization Merger, this Agreement and the Certificate of Incorporation Merger to its stockholders for adoption whether or not the Company’s board of directors determines at any time subsequent to declaring its advisability that this Agreement is no longer advisable and Bylaws recommends that its stockholders reject it. The Company shall consult with Parent regarding the date of the Company to obtain the Requisite Stockholder Approval Action and shall not postpone or adjourn (other than for the adoption absence of this Agreement and approval a quorum) any meeting of the Merger and stockholders of the other transactions contemplated by this Agreement. The Company’s obligation to obtain Company without the Requisite Stockholder Approval consent of Parent, which consent shall not be limited to or otherwise affected by the commencement, disclosure, announcement or submission to the Company of any Acquisition Proposal or any subsequent action by the Company’s Board of Directorsunreasonably withheld.
(i) The Company’s Board of Directors shall unanimously recommend (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of the approval of the Merger and adoption of this Agreement; (ii) subject to the provisions of the second sentence of this Section 6.2(b), any information statement or other disclosure document distributed to the Company Stockholders in connection with this transaction shall include a statement to the effect that the Company’s Board of Directors has unanimously recommended (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of and approve and adopt this Agreement and approve the Merger; and (iii) subject to the provisions of the second sentence of this Section 6.2(b), neither the Company’s Board of Directors nor any committee thereof shall withhold, withdraw, amend or modify, or propose or resolve to withhold, withdraw, amend or modify in a manner adverse to Parent, the unanimous (acting without the participation of Dxxxx Xxxxxx) recommendation of the Company’s Board of Directors that the Company Stockholders vote in favor of the approval of the Merger and adoption of this Agreement. Notwithstanding the foregoing, prior to receipt by the Company of the Requisite Stockholder Approval approving the Merger and adopting this Agreement, the Company’s Board of Directors may withhold, withdraw, amend or modify its recommendation to the Company Stockholders if (i) it receives an unsolicited written Acquisition Proposal and reasonably concludes in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated (taking into account all legal, financial and regulatory aspects of the proposal, the likelihood of the proposal being financed and the Person making the proposal), and would, if consummated, result in a transaction more favorable to the Company Stockholders from a financial point of view than the Merger and (ii) it reasonably concludes in good faith (following the receipt of advice from outside counsel) that modification or withdrawal of its recommendation is required in order to comply with its fiduciary obligations to the Company Stockholders under Delaware Law and California Law, as applicable (a “Superior Proposal”).
Appears in 1 contract
Approval of the Company Stockholders. (a) As soon as practicable Promptly after the date the California Commissioner issues the Permit orAgreement Date, in the event that Parent files the registration statement on Form S-4 pursuant to Section 6.1(e), as soon as practicable after the declaration of effectiveness of the registration statement on Form S-4 (and in any event, to the extent permissible under applicable law, within ten (10) days), the Company shall will take all action necessary in accordance with Delaware Law and its Certificate of Incorporation and Bylaws to call, notice, convene, hold and conduct a meeting of the Company Stockholders (the "Company Stockholders Meeting") to be held as soon as practicable, and in no event later than July 30, 2002 for the purpose of voting upon approval and adoption of this AgreementAgreement and approval of the Merger. In lieu of the Company Stockholders Meeting, such approval by the Company Stockholders may be obtained by the written consent of the Company Stockholders by no later than July 30, 2002 (the "Company Stockholders Vote") where authorized by Delaware Law, (and California Law, if applicable) Law and the Certificate of Incorporation and Bylaws of Company.
(b) Subject to Section 5.7(c), Company's Board of Directors will recommend that the Company Stockholders vote in favor of and approve and adopt this Agreement and approve the Merger at the Company Stockholders Meeting or in the Company Stockholders Vote. Subject to obtain Section 5.7(c), the Requisite Stockholder Approval for Information Statement will include a statement to the effect that Company's Board of Directors has recommended that the Company Stockholders vote in favor of and approve and adopt this Agreement and approve the Merger at the Company Stockholders Meeting or in the Company Stockholders Vote.
(c) Company will solicit from the Company Stockholders proxies in favor of the approval and adoption of this Agreement and the approval of the Merger Merger, and will use all reasonable efforts to take all other action necessary to secure the vote or consent of the Company Stockholders required by Delaware Law to obtain such approvals. Company will ensure that, as applicable, (i) the Company Stockholders Meeting is called, noticed, convened, held and conducted in accordance with Applicable Laws and Company's certificate of incorporation and bylaws, each as amended, before and separate from any meeting of the Company Stockholders at which any Acquisition Proposal is considered or voted upon or (ii) the Company Stockholder Vote is properly solicited and obtained in accordance with Applicable Laws and Company's certificate of incorporation and bylaws, each as amended. All proxies solicited by Company in connection with the Company Stockholders Meeting will be solicited in compliance with Delaware Law, its certificate of incorporation and bylaws, and all other transactions contemplated by this Agreementapplicable legal requirements. The Company’s 's obligation to obtain call, give notice of, convene, hold and conduct the Requisite Company Stockholders Meeting in accordance with this Section 5.14 (or to solicit the Company Stockholder Approval shall Vote by written consent) will not be limited to or otherwise affected by the commencement, disclosure, announcement or submission to the Company of any Acquisition Proposal (including a Superior Offer) or by any subsequent action by withdrawal, amendment or modification of the recommendation of Company’s Board of Directors.
(i) The Company’s 's Board of Directors shall unanimously recommend (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of the approval of the Merger and adoption of this Agreement; (ii) subject to the provisions of the second sentence of this Section 6.2(b), any information statement or other disclosure document distributed to the Company Stockholders to approve this Agreement and the Merger.
(d) Company will use commercially reasonable efforts to have any payment or benefit under any Contract, including those entered into in connection with this transaction shall include Agreement, the Merger and the transactions contemplated hereby approved by such percentage of Company's outstanding voting securities as is required by the terms of Section 280G(b)(5)(B) of the Code to avoid the treatment of such payment or benefit, as a statement parachute payment under the federal tax laws, and to cause such stockholder approval to have been obtained in a manner which satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code and the proposed Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such proposed regulations.
(e) Company will use its best efforts to have the bonus payments pursuant to Company's Employee Retention Bonus Plan approved by such number of Company's outstanding voting securities as would be required to amend Company's certificate of incorporation to add such Employee Retention Bonus Plan as liquidation preference senior to the effect that Company Series 3 Preferred Stock.
(f) Company will use its best efforts to have the Company’s Board payment of Directors has unanimously recommended (acting without the participation of Dxxxx Xxxxxx) that the cash to Unaccredited Company Stockholders vote in favor lieu of and approve and adopt Acquirer Common Stock pursuant to Section 2.9(b) approved by each Company Stockholder that will receive Acquirer Common Stock pursuant to this Agreement and approve the Merger; and (iii) subject to the provisions of the second sentence of this Section 6.2(b), neither the Company’s Board of Directors nor any committee thereof shall withhold, withdraw, amend or modify, or propose or resolve to withhold, withdraw, amend or modify in a manner adverse to Parent, the unanimous (acting without the participation of Dxxxx Xxxxxx) recommendation of the Company’s Board of Directors that the Company Stockholders vote in favor of the approval of the Merger and adoption of this Agreement. Notwithstanding the foregoing, prior to receipt by the Company of the Requisite Stockholder Approval approving the Merger and adopting this Agreement, the Company’s Board of Directors may withhold, withdraw, amend or modify its recommendation to the Company Stockholders if (i) it receives an unsolicited written Acquisition Proposal and reasonably concludes in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated (taking into account all legal, financial and regulatory aspects of the proposal, the likelihood of the proposal being financed and the Person making the proposal), and would, if consummated, result in a transaction more favorable to the Company Stockholders from a financial point of view than the Merger and (ii) it reasonably concludes in good faith (following the receipt of advice from outside counsel) that modification or withdrawal of its recommendation is required in order to comply with its fiduciary obligations to the Company Stockholders under Delaware Law and California Law, as applicable (a “Superior Proposal”).
Appears in 1 contract
Approval of the Company Stockholders. (a) Promptly following the execution of this Agreement, Company shall submit this Agreement and the transactions contemplated hereby to the Company Support Stockholders for approval and adoption as provided by Delaware Law and the Company Certificate of Incorporation and By-laws pursuant to the Support Stockholder Merger Written Consent in the form attached at Exhibit A-2. As soon as reasonably practicable after the earlier of (1) the date the California Commissioner issues the California Permit or, in or (2) the event date that Parent files the registration statement on Form S-4 delivers an Election Notice pursuant to Section 6.1(e), as soon as practicable after 2.7(e) to the declaration of effectiveness of the registration statement on Form S-4 Stockholder Representative (and in any event, to the extent permissible under applicable lawLaw, within ten (10) daysBusiness Days after such date, as applicable), the Company shall take all action necessary use commercially reasonable efforts in accordance with this Agreement, Delaware Law and the Charter Documents to submit the Company Voting Proposals for the approval and adoption of the other Company Stockholders. The Company shall use its commercially reasonable efforts to obtain the approval or consent of the Company Voting Proposals by such Company Stockholders.
(b) To the extent consistent with the their fiduciary duties under applicable Law, (and California Law, if applicable) and the Certificate of Incorporation and Bylaws of the Company to obtain the Requisite Stockholder Approval for the adoption of this Agreement and approval of the Merger and the other transactions contemplated by this Agreement. The Company’s obligation to obtain the Requisite Stockholder Approval shall not be limited to or otherwise affected by the commencement, disclosure, announcement or submission to the Company of any Acquisition Proposal or any subsequent action by the Company’s Board of Directors.
(i) The the Company’s Board of Directors shall unanimously recommend (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of the approval of the Merger and adoption of this Agreement; (ii) subject to the provisions of the second sentence of this Section 6.2(b), Information Statement or any information statement or other disclosure document distributed to the Company Stockholders in connection with the transactions contemplated by this transaction Agreement shall include a statement to the effect that the Company’s Board of Directors has unanimously recommended (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of and approve and adopt this Agreement and approve the Merger; and (iii) subject to the provisions of the second sentence of this Section 6.2(b), neither the Company’s Board of Directors nor any committee thereof shall withhold, withdraw, amend or modify, or propose or resolve to withhold, withdraw, amend or modify in a manner adverse to Parent, the unanimous (acting without the participation of Dxxxx Xxxxxx) recommendation of the Company’s Board of Directors that the Company Stockholders vote in favor of the approval of the Merger and adoption of this Agreement. Notwithstanding .
(c) In addition, the foregoing, Company shall (i) prior to receipt by the meeting of Company Stockholders to consider the Merger, use commercially reasonable efforts to cause each individual who will receive any payments and/or benefits in connection with the Merger that are reasonably expected to constitute “parachute payments” pursuant to Section 280G of the Requisite Stockholder Approval approving Code (the Merger “280G Payments”) to execute a waiver, in a form and adopting this Agreement, the Company’s Board of Directors may withhold, withdraw, amend or modify its recommendation substance reasonably satisfactory to the Company Stockholders if and Parent (i) it receives an unsolicited written Acquisition Proposal and reasonably concludes in good faith the “280G Waiver”), pursuant to which each such individual will waive any right or entitlement to such payments and/or benefits unless the requisite stockholder approval of those payments and/or benefits is obtained pursuant to Section 280G of the Code so that such Acquisition Proposal, if accepted, is reasonably likely to be consummated (taking into account all legal, financial payments and regulatory aspects of the proposal, the likelihood of the proposal being financed and the Person making the proposal), and would, if consummated, result in a transaction more favorable to the Company Stockholders from a financial point of view than the Merger benefits do not constitute “parachute payments” thereunder; and (ii) it reasonably concludes in good faith (following the receipt of advice from outside counsel) that modification or withdrawal of its recommendation is required in order to comply with its fiduciary obligations to thereafter, submit for approval by the Company Stockholders by the requisite vote (and in a manner reasonably satisfactory to Parent) any such payments or benefits described above, such that any such payments and benefits shall not be deemed to be “parachute payments” pursuant to Section 280G of the Code or shall be exempt from such treatment under Delaware Law such Section 280G, and California Lawdeliver to Parent evidence reasonably satisfactory to Parent that (x) a Company Stockholder vote was held in conformance with Section 280G and the regulations thereunder, or (y) such requisite Company Stockholder approval has not been obtained with respect to any payment or benefit that may be deemed to constitute a “parachute payment” within the meaning of Section 280G of the Code and, as a consequence and subject to the applicable (a 280G Waiver, if any, that such “Superior Proposal”)parachute payment” shall not be made or provided.
Appears in 1 contract
Samples: Merger Agreement (Omniture, Inc.)
Approval of the Company Stockholders. (a) As soon as practicable after the date the California Commissioner issues the Permit or, in the event that Parent files the registration statement on Form S-4 pursuant to Section 6.1(e), as soon as practicable after the declaration of effectiveness of the registration statement on Form S-4 (and in any event, to the extent permissible under applicable law, within ten (10) days), the The Company shall take all action necessary in accordance with this Agreement, Delaware Law, (and California Law, if applicable) Law and the Certificate of Incorporation and Bylaws of the Company to obtain call, notice, convene, hold and conduct a meeting of the Requisite Stockholder Approval Company Stockholders (the "COMPANY STOCKHOLDERS MEETING") or to secure the written consent of the Company Stockholders (the "COMPANY STOCKHOLDERS CONSENT") for the purpose of voting upon approval of the Merger, the Certificate of Amendment and adoption of this Agreement Agreement. The Company shall hold the Company Stockholders Meeting or solicit the Company Stockholders Consent, as the case may be, as soon as practicable and in no event later than 30 days following the date the California Commissioner issues the Permit (or, in the event that the filing of a Registration Statement is required pursuant to Section 7.1(f) hereof, following the date the Registration Statement is declared effective by the SEC). If the Company will call a Company Stockholders Meeting, the Company shall consult with Acquiror regarding the date of the Company Stockholders Meeting and shall not postpone or adjourn (other than for the absence of a quorum and postponements and adjournments not to exceed five business days in the aggregate necessary for the sole purpose of obtaining additional votes in order to obtain the requisite vote of the Company Stockholders necessary to approve the Merger and adopt this Agreement) the Company Stockholders Meeting without the prior written consent of Acquiror. If the Company will call a Company Stockholders Meeting, the Company shall use its reasonable best efforts to solicit from the Company Stockholders proxies to be voted on the approval of the Merger and the other transactions contemplated by adoption of this Agreement. The Company’s 's obligation to obtain call, give notice of, convene, hold and conduct the Requisite Stockholder Approval Company Stockholders Meeting in accordance with this Section 5.11(a) shall not be limited to or otherwise affected by the commencement, disclosure, announcement or submission to the Company of any Acquisition Proposal Alternative Transaction. The Company shall exercise reasonable best efforts to take all other action necessary to secure the vote or any subsequent action consent of the Company Stockholders required to effect each of the transactions contemplated by the Company’s Board of Directorsthis Agreement.
(ib) The Company’s 's Board of Directors shall unanimously recommend (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of the approval of the Merger and adoption of this Agreement; (ii) subject to the provisions of the second sentence of this Section 6.2(b), any information statement or other disclosure document distributed to Agreement at the Company Stockholders in connection with this transaction shall include a statement to the effect that Meeting. Neither the Company’s Board of Directors has unanimously recommended (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of and approve and adopt this Agreement and approve the Merger; and (iii) subject to the provisions of the second sentence of this Section 6.2(b), neither the Company’s 's Board of Directors nor any committee thereof shall withhold, withdraw, amend or modify, or propose or resolve to withhold, withdraw, amend or modify modify, in a manner adverse to ParentAcquiror, the unanimous (acting without the participation of Dxxxx Xxxxxx) recommendation of the Company’s 's Board of Directors that the Company Stockholders vote in favor of the approval of and approve the Merger and adoption of adopt this Agreement. Notwithstanding the foregoing.
(c) The Company shall obtain and deliver to Acquiror, prior to receipt by the Company of the Requisite Stockholder Approval approving the Merger and adopting this Agreement, the Company’s Board of Directors may withhold, withdraw, amend mailing or modify its recommendation delivery to the Company Stockholders if (i) it receives an unsolicited written Acquisition Proposal and reasonably concludes in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated (taking into account all legal, financial and regulatory aspects of the proposalInformation Statement, a Parachute Payment Waiver substantially in the likelihood form attached hereto as Exhibit G ("PARACHUTE PAYMENT WAIVER") from each Person who the Company and Acquiror reasonably agree is, with respect to the Company, any Company Subsidiary and/or any ERISA Affiliate, a "disqualified individual" (within the meaning of Section 280G of the proposal being financed Code and the Person making regulations promulgated thereunder), as determined immediately prior to the proposalinitiation of the requisite stockholder approval procedure under Section 5.11(d), and wouldwho the Company and Acquiror reasonably agree might otherwise receive, if consummatedhave received, result or have the right or entitlement to receive a parachute payment under Section 280G of the Code (such Persons being set forth on Schedule 5.11(c) of the Company Disclosure Letter).
(d) The Company shall include in the Information Statement a transaction more favorable proposal to be voted on by the Company Stockholders from a financial point of view than the Merger and (ii) it reasonably concludes in good faith (following the receipt of advice from outside counsel) that modification or withdrawal of its recommendation as is required by the terms of Section 280G(b)(5)(B) of the Code (the "280G PROPOSAL") so as to render the parachute payment provisions of Section 280G of the Code inapplicable to any and all payments and/or benefits provided pursuant to Contracts or arrangements that, in order the absence of the executed Parachute Payment Waivers by the affected Persons under Section 5.11(c), might otherwise result, separately or in the aggregate, in the payment of any amount and/or the provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such stockholder approval to comply with its fiduciary obligations to be obtained in a manner which satisfies all applicable requirements of such Section 280G(b)(5)(B) of the Company Stockholders under Delaware Law Code and California Lawthe proposed Treasury Regulations thereunder, as applicable (a “Superior Proposal”)including Q-7 of Section 1.280G-1 of such proposed Treasury Regulations.
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Approval of the Company Stockholders. (a) 6.9.1 As soon as practicable (and in any event no later than ten (10) days) after the date the California Commissioner issues the Permit or, in the event that Parent files Acquirer elects to proceed with the filing of the registration statement on Form S-4 pursuant to Section 6.1(e)6.8.5, as soon as practicable (and in any event, to the extent permissible under Applicable Law, within ten (10) days) after the declaration of effectiveness of the registration statement on Form S-4 (and in any event, to the extent permissible under applicable law, within ten (10) days)S-4, the Company shall take all action necessary in accordance with this Agreement, the Delaware Law, (and the California Law, if applicable) and the Certificate of Incorporation and Bylaws of the Company to obtain the Requisite Stockholder Approval written consent of the Company Stockholders for the approval and adoption of this Agreement and approval of the Merger and the other transactions contemplated by this AgreementAgreement (the “Company Stockholder Approval”). The Company’s obligation to obtain the Requisite Company Stockholder Approval shall not be limited to or otherwise affected by the commencement, disclosure, announcement or submission to the Company of any Acquisition Proposal Alternative Transaction or any subsequent action by the Company’s Board of Directors.
(i) 6.9.2 The Company’s Board of Directors shall unanimously recommend (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of and approve and adopt this Agreement and the approval of Company Ancillary Agreements and approve the Merger and adoption of this Agreement; (ii) subject to the provisions of the second sentence of this Section 6.2(b), any information statement or other disclosure document distributed to the Company Stockholders in connection with this transaction obtaining the Company Stockholder Approval. The Information Statement shall include a statement to the effect that the Company’s Board of Directors of the Company has unanimously recommended (acting without the participation of Dxxxx Xxxxxx) that the Company Stockholders vote in favor of and approve and adopt this Agreement and approve the Merger; and (iii) subject to the provisions of the second sentence of this Section 6.2(b), neither . Neither the Company’s Board of Directors nor any committee thereof shall withhold, withdraw, amend or modify, or propose or resolve to withhold, withdraw, amend or modify modify, in a manner adverse to ParentAcquirer, the unanimous (acting without the participation of Dxxxx Xxxxxx) recommendation of the Company’s Board of Directors that the Company Stockholders vote in favor of and approve and adopt this Agreement and the Company Ancillary Agreements and approve the Merger.
6.9.3 The Company shall use its reasonable efforts to obtain approval by such percentage of the Merger and adoption of this Agreement. Notwithstanding the foregoing, prior to receipt Company’s outstanding voting securities as is required by the Company terms of Section 280G(b)(5)(B) of the Requisite Stockholder Approval approving Code to avoid the Merger and adopting treatment of any payment or benefit under any Contract, including those entered into in connection with this Agreement, the Company’s Board Merger and the transactions contemplated hereby, as a parachute payment under the federal tax laws, and to cause such stockholder approval to have been obtained in a manner which satisfies all applicable requirements of Directors may withhold, withdraw, amend or modify its recommendation to the Company Stockholders if (iSection 280G(b)(5)(B) it receives an unsolicited written Acquisition Proposal and reasonably concludes in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated (taking into account all legal, financial and regulatory aspects of the proposal, the likelihood of the proposal being financed Code and the Person making the proposal)Treasury Regulations thereunder, and would, if consummated, result in a transaction more favorable to the Company Stockholders from a financial point including Q-7 of view than the Merger and (ii) it reasonably concludes in good faith (following the receipt Section 1.280G-1 of advice from outside counsel) that modification or withdrawal of its recommendation is required in order to comply with its fiduciary obligations to the Company Stockholders under Delaware Law and California Law, as applicable (a “Superior Proposal”)such proposed regulations.
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