Common use of Board and Shareholder Approval Clause in Contracts

Board and Shareholder Approval. (a) Following delivery of the Merger Documents and receipt of the determination of the Diversus FMV and the Positive Share FMV, the boards of directors of Positive and Diversus shall review and negotiate the Merger Documents in good faith. When each of Diversus and Positive is reasonably satisfied with the form and substance of such Merger Documents, it will call and hold a meeting of its board of directors to consider and vote on approving the Merger Documents and the terms of the Merger. If approved by both the board of directors of Diversus and the board of directors of Positive, the respective boards of directors of Positive and Diversus shall (i) call a special meeting of their respective shareholders to consider and vote on approving the Merger Documents and the transactions contemplated by the Merger Documents, and (ii) recommend to their respective shareholders that such shareholders vote in favor of approval of the transactions contemplated by the Merger Documents. ICG agrees to cause its representatives on the board of directors of Positive to vote to approve the Merger Documents and the transactions contemplated by the Merger Documents and to vote all shares of voting stock of Positive owned by ICG in favor of approving the transactions contemplated by the Merger Documents. (b) If approved by the respective boards of directors and shareholders of Positive and Diversus, the closing date of the Merger shall be the earlier of (i) a date which is mutually acceptable to Positive and Diversus and (ii) the deadline set forth in the applicable Merger Notice; provided, however, that such closing shall not occur prior to the date that all consents required from Governmental Agencies have been obtained. (c) If the merger consideration paid to each Diversus Shareholder for each share of common stock of Diversus (determined on a fully-diluted basis assuming the conversion of all preferred equity into common stock and the exercise of all options for common stock) in connection with the Merger is at least six dollars ($6.00) per share (as adjusted as necessary to take into account any stock splits, dividends or combinations) and the Diversus directors and/or shareholders fail to approve such Merger, Positive shall have the right to terminate this Agreement on written notice to Diversus, following which notice this Agreement shall terminate and be of no further force or effect; provided, that if, at the time which such Merger is considered by the Diversus directors and/or shareholders, Positive or a subsidiary thereof has executed a term sheet for an acquisition which, if consummated, would have the effect of increasing the Diversus Equity FMV, then Diversus may by notice to Positive and ICG, postpone the Merger for up to nine (9) months, in which event the calculation of the Diversus Equity FMV for such Merger shall be performed as of such later date.

Board and Shareholder Approval. (a) Following delivery The Board of the Merger Documents and receipt Directors of the determination of the Diversus FMV and the Positive Share FMV, the boards of directors of Positive and Diversus shall review and negotiate the Merger Documents in good faith. When each of Diversus Holdco and Positive is reasonably satisfied with the form and substance of such Merger Documents, it will call and hold a meeting of its board of directors to consider and vote on approving the Merger Documents and the terms of the Merger. If approved by both the board of directors of Diversus and the board of directors of Positive, the respective boards of directors of Positive and Diversus shall Delaware Sub has unanimously (i) call a special meeting determined that the TAL Merger and the other transactions contemplated hereby, on the terms and subject to the conditions set forth herein, are fair to, and in the best interests of, Holdco or Delaware Sub, as the case may be, and its shareholder(s), (ii) adopted resolutions that have approved and declared advisable this Agreement and the TAL Merger, and such resolutions have not been subsequently rescinded, modified or withdrawn in any way, and (iii) recommended that Holdco, as the sole stockholder of their respective shareholders to consider Delaware Sub, approve and vote on approving the Merger Documents adopt this Agreement and the transactions contemplated by hereby, including the Merger DocumentsTAL Merger, and (ii) recommend to their respective shareholders directed that such shareholders vote in favor of approval of the transactions contemplated by the Merger Documents. ICG agrees matter be submitted to cause its representatives on the board of directors of Positive to vote to approve the Merger Documents and the transactions contemplated by the Merger Documents and to vote all shares of voting stock of Positive owned by ICG in favor of approving the transactions contemplated by the Merger DocumentsHoldco for approval. (b) If approved by the respective boards The Board of directors Directors of each of Holdco, Triton and shareholders of Positive and Diversus, the closing date of the Merger shall be the earlier of Bermuda Sub has unanimously (i) a date which determined that the Triton Merger, on the terms and subject to the conditions set forth herein and in the Statutory Merger Agreement, is mutually acceptable fair to, and in the best interests of, Holdco, Triton and Bermuda Sub, as the case may be, and its shareholders, (ii) adopted resolutions that have approved and declared advisable this Agreement, the Statutory Merger Agreement and the Triton Merger, and such resolutions have not been subsequently rescinded, modified or withdrawn in any way and (iii) recommended that Holdco, as the sole shareholder of Bermuda Sub, and the shareholders of Triton approve the Statutory Merger Agreement and directed that such matter be submitted to Positive Holdco and, at the Triton Shareholders Meeting, the Triton shareholders (as applicable). The Board of Directors of Triton has unanimously determined that the Triton Merger Consideration constitutes fair value for each Triton Common Share in accordance with the Companies Act. (c) Subject to the voting provisions contained in the bye-laws of Triton, (i) the affirmative vote (in person or by proxy) in favor of the approval of the Statutory Merger Agreement of the holders of seventy five percent (75%) or more of the Triton Common Shares voting and Diversus in attendance at the Triton Shareholders Meeting (the “Triton Shareholder Approval”) and (ii) the deadline set forth approval of the Sponsors (as such term is defined in the applicable Merger Notice; providedSponsor Shareholders’ Agreement) in accordance with the terms of the Sponsor Shareholders’ Agreement, however, that such closing shall not occur which approval of the Sponsors has been obtained prior to or concurrently with the date execution hereof, are the only votes or approvals of the holders of voting securities of Triton that all consents required from Governmental Agencies have been obtained. (c) If are necessary to consummate this Agreement, the merger consideration paid to each Diversus Shareholder for each share of common stock of Diversus (determined on a fully-diluted basis assuming the conversion of all preferred equity into common stock Statutory Merger Agreement and the exercise transactions contemplated hereby and thereby, including the Triton Merger. To the Knowledge of all options for common stock) in connection with Triton, no “moratorium,” “control share,” “fair price” or other anti-takeover Law is applicable to this Agreement, the Merger is at least six dollars ($6.00) per share (as adjusted as necessary to take into account any stock splits, dividends Mergers or combinations) and the Diversus directors and/or shareholders fail to approve such Merger, Positive shall have the right to terminate this Agreement on written notice to Diversus, following which notice this Agreement shall terminate and be of no further force or effect; provided, that if, at the time which such Merger is considered by the Diversus directors and/or shareholders, Positive or a subsidiary thereof has executed a term sheet for an acquisition which, if consummated, would have the effect of increasing the Diversus Equity FMV, then Diversus may by notice to Positive and ICG, postpone the Merger for up to nine (9) months, in which event the calculation of the Diversus Equity FMV for such Merger shall be performed as of such later dateother transactions contemplated hereby.

Board and Shareholder Approval. (a) Following delivery Merger Sub, Acquiror, Acquiror’s Board of Directors, DBA’s Board of Directors and the Principal Shareholders have approved this Agreement and the Merger Documents and receipt prior to the date hereof. Promptly after executing this Agreement, DBA, acting through its Board of the determination of the Diversus FMV and the Positive Share FMVDirectors, the boards of directors of Positive and Diversus shall review and negotiate the Merger Documents in good faith. When each of Diversus and Positive is reasonably satisfied with the form and substance of such Merger Documentsduly call, it will call give notice of, convene, and hold a meeting of its board of directors to consider and vote on approving the Merger Documents and the terms of the Merger. If approved by both the board of directors of Diversus and the board of directors of Positive, the respective boards of directors of Positive and Diversus shall (i) call a special meeting of their respective shareholders to consider the DBA Shareholders for the purpose of considering and vote on approving this Agreement and the Merger Documents in accordance with all applicable requirements of Section 14A:10-3 of the NJBCA (the “Special Meeting”). Unless the DBA Shareholders elect to waive prior notice thereof, DBA will provide written notice at least 20 days before the Special Meeting to all DBA Shareholders informing that the Board of Directors of DBA and the transactions contemplated by the Merger DocumentsPrincipal Shareholders have approved this Agreement. At such meeting, and (ii) recommend to their respective shareholders that such shareholders vote in favor of approval of the transactions contemplated by the Merger Documents. ICG agrees to cause its representatives on the board of directors of Positive to vote to approve the Merger Documents and the transactions contemplated by the Merger Documents and to each Principal Shareholder shall vote all shares of voting stock of Positive owned by ICG in favor of approving the transactions contemplated by DBA Common Stock, to approve this Agreement and the Merger Documentsin accordance with all applicable requirements of the NJBCA. (b) If approved by In conjunction with the respective boards Special Meeting, DBA will provide notice to its shareholders other than the Principal Shareholders (the “Minority Shareholders”) that it will invoke the drag along provisions within section 2.4 of directors and shareholders of Positive and Diversusthat DBA Distribution Services, Inc. Securityholders Agreement dated July 1, 2008 (the closing date of the Merger shall be the earlier of (i) a date which is mutually acceptable to Positive and Diversus and (ii) the deadline set forth in the applicable Merger Notice; provided, however, that such closing shall not occur prior to the date that all consents required from Governmental Agencies have been obtained“DBA Shareholders Agreement”). (c) If The Special Meeting shall be cancelled in the merger consideration paid event that, prior to each Diversus Shareholder for each share the date thereof, DBA obtains the unanimous written consent of common stock of Diversus (determined on a fully-diluted basis assuming the conversion of all preferred equity into common stock DBA Shareholders approving this Agreement, the Merger and the exercise transactions contemplated herein and waiving any required notice or waiting periods, statutory or otherwise. (d) Each of Acquiror, Merger Sub, DBA and Principal Shareholders, respectively, shall use their commercially reasonable efforts to take all options for common stock) in connection such action as may be necessary and appropriate to effectuate the Merger under the NJBCA and DGCL as promptly as possible, including, without limitation, the filing of the Certificate of Merger consistent with the Merger terms of this Agreement. If at any time after the Effective Time, any further action is at least six dollars ($6.00) per share (as adjusted as necessary or desirable to take into account any stock splitscarry out the purposes of this Agreement, dividends the officers of such corporations are fully authorized in the name of their corporations or combinations) otherwise, and notwithstanding the Diversus directors and/or shareholders fail to approve such Merger, Positive to take, and shall have the right to terminate this Agreement on written notice to Diversustake, following which notice this Agreement shall terminate all lawful and be of no further force or effect; provided, that if, at the time which such Merger is considered by the Diversus directors and/or shareholders, Positive or a subsidiary thereof has executed a term sheet for an acquisition which, if consummated, would have the effect of increasing the Diversus Equity FMV, then Diversus may by notice to Positive and ICG, postpone the Merger for up to nine (9) months, in which event the calculation of the Diversus Equity FMV for such Merger shall be performed as of such later datenecessary action.