Board Approval; Vote Required. (i) The Board of Directors of New Core, by resolutions duly adopted by unanimous vote at a meeting duly called and held, or by action by unanimous written consent, and not subsequently rescinded or modified in any way, has duly (A) determined that this Agreement and the Merger are advisable and in the best interests of New Core and its shareholders, (B) approved this Agreement and the Merger, (C) resolved to recommend that the shareholders of New Core approve and adopt this Agreement and the Merger and directed that this Agreement and the Merger be submitted for consideration by New Core’s shareholders for approval and adoption and (D) taken all other action necessary to render any and all limitations on business combinations contained in the FBCA and the provisions of New Core’s articles of incorporation inapplicable to the transactions contemplated hereby. To the Knowledge of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable), no state takeover statute is applicable or purports to be applicable to the Merger or the other transactions contemplated hereby. (ii) The affirmative vote of the holders of a majority of the outstanding shares of New Core Common Stock (the “Required New Core Vote”) to approve and adopt this Agreement and the Merger is the only vote of the holders of any class or series of New Core capital stock necessary to approve or adopt this Agreement and the Merger and the other transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Rurban Financial Corp), Merger Agreement (Rurbanc Data Services Inc)
Board Approval; Vote Required. (ia) The Board of Directors of New CoreCompany Board, by resolutions duly adopted by unanimous vote at a meeting duly called and held, or by action by unanimous written consent, and not subsequently rescinded or modified in any way, has duly (Ai) determined that this Agreement Agreement, the Merger and the Merger other Transactions are advisable fair to and in the best interests of New Core the Company and its shareholdersstockholders, (Bii) approved this Agreement Agreement, the Merger and the Mergerother Transactions and declared their advisability, and (Ciii) resolved to recommend recommended that the shareholders stockholders of New Core approve and the Company adopt this Agreement and the Merger and directed that this Agreement and the Merger be submitted for consideration by New Core’s shareholders the Company's stockholders at the Company Stockholders' Meeting (collectively, the "COMPANY BOARD RECOMMENDATION"). The approval of this Agreement, the Merger and the other Transactions by the Company Board constitutes approval of this Agreement, the Merger and the other Transactions for approval purposes of each of Section 203 of the DGCL and adoption Article Tenth of the Certificate of Incorporation of the Company and (D) taken all other represents the only action necessary to render any ensure that Section 203 of the DGCL and all limitations on business combinations contained in Article Tenth of the FBCA Certificate of Incorporation of the Company do not and the provisions of New Core’s articles of incorporation inapplicable will not apply to the transactions contemplated hereby. To the Knowledge execution and delivery of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable), no state takeover statute is applicable or purports to be applicable to the Merger this Agreement or the other transactions contemplated herebyconsummation of the Transactions.
(iib) The Except as contemplated by Section 2.06, the only vote of the holders of any class or series of capital stock or other securities of the Company necessary to approve this Agreement, the Merger and the other Transactions is the affirmative vote of the holders of a majority of the outstanding shares of New Core Company Common Stock in favor of the adoption of this Agreement (the “Required New Core Vote”) to approve and adopt this Agreement and the Merger is the only vote of the holders of any class or series of New Core capital stock necessary to approve or adopt this Agreement and the Merger and the other transactions contemplated hereby"STOCKHOLDER APPROVAL").
Appears in 2 contracts
Samples: Merger Agreement (Prime Hospitality Corp), Merger Agreement (Prime Hospitality Corp)
Board Approval; Vote Required. (ia) The Board of Directors of New CoreCompany Board, by resolutions duly adopted by unanimous vote at a meeting duly called and held, which resolutions, subject to Section 6.04, have not been subsequently rescinded, modified or by action by unanimous written consent, and not subsequently rescinded or modified withdrawn in any way, has by unanimous vote of those directors present (who constituted 100% of the directors then in office) duly (Ai) determined that this Agreement Agreement, the Merger and the Merger Other Transactions are advisable fair to and in the best interests of New Core the Company and its shareholdersstockholders, (Bii) approved this Agreement, the Merger and the Other Transactions and declared their advisability, and (iii) recommended that the stockholders of the Company adopt this Agreement and directed that this Agreement be submitted for consideration by the MergerCompany's stockholders at the Company Stockholders' Meeting. Assuming the accuracy of Parent's representations and warranties in Section 4.09, (C) resolved to recommend that the shareholders approval of New Core approve and adopt this Agreement by the Company Board constitutes approval of this Agreement and the Merger for purposes of Section 203 of the DGCL ("SECTION 203") and directed that this Agreement and represents the Merger be submitted for consideration by New Core’s shareholders for approval and adoption and (D) taken all other only action necessary to render any ensure that the restrictions of Section 203 do not apply to the execution and all limitations on business combinations contained delivery of this Agreement or the consummation of the Merger and the Other Transactions. No "fair price," "moratorium," "control share acquisition," or other similar anti-takeover statute or regulation enacted under state or federal Law in the FBCA and United States (with the provisions exception of New Core’s articles of incorporation inapplicable Section 203) applicable to the Company is applicable to the transactions contemplated hereby. To the Knowledge of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable), no state takeover statute is applicable or purports to be applicable to the Merger or the other transactions contemplated herebyby this Agreement.
(ii) The affirmative vote of the holders of a majority of the outstanding shares of New Core Common Stock (the “Required New Core Vote”) to approve and adopt this Agreement and the Merger is the only vote of the holders of any class or series of New Core capital stock necessary to approve or adopt this Agreement and the Merger and the other transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Morgan Stanley), Merger Agreement (Morgan Stanley)
Board Approval; Vote Required. (i) The Board of Directors of New Core, Company has by resolutions duly adopted by unanimous vote at a meeting duly called and held, which resolutions, have not been subsequently rescinded, modified or by action by unanimous written consent, and not subsequently rescinded or modified withdrawn in any way, has by unanimous vote duly (Ai) determined that this Agreement and the Merger and the transactions contemplated hereby are advisable fair to and in the best interests of New Core Company and its shareholdersstockholders, (Bii) approved this agreement and the Merger and the transactions contemplated hereby and declared their advisability, and (iii) recommend that the stockholders of Company approve this Agreement and the Merger, transactions contemplated hereby (Cthe “Company Recommendation”) resolved to recommend that the shareholders of New Core approve and adopt this Agreement and the Merger and directed that this Agreement and the Merger be submitted for consideration by New CoreCompany’s shareholders for approval and adoption and (D) taken all other action necessary to render any and all limitations on business combinations contained in stockholders at the FBCA and the provisions of New Core’s articles of incorporation inapplicable to the transactions contemplated herebyCompany Stockholders’ Meeting. To the Knowledge of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable), no state takeover statute is applicable or purports to be applicable to the Merger or the other transactions contemplated hereby.
(ii) The affirmative vote of the holders of a majority of the outstanding shares of New Core Company Common Stock (is the “Required New Core Vote”) only vote necessary to approve and adopt this Agreement and the Merger is the only vote transactions contemplated hereby. The approval of the holders Company Board of any class or series Directors constitutes approval of New Core capital stock necessary to approve or adopt this Agreement as required under any applicable state takeover law and no such state takeover law is applicable to the Merger and or the other transactions contemplated hereby, including, without limitation, the restrictions on business combinations contained in Section 203 of the DGCL.
Appears in 2 contracts
Samples: Merger Agreement (Iconix Brand Group, Inc.), Merger Agreement (Mossimo Inc)
Board Approval; Vote Required. (ia) The Board of Directors of New CoreCompany Board, by resolutions duly adopted by unanimous vote at a meeting duly called and held, or by action by unanimous written consent, and not subsequently rescinded or modified in any way, has duly (Ai) determined that this Agreement Agreement, the Merger and the Merger other Transactions are advisable fair to and in the best interests of New Core the Company and its shareholdersstockholders, (Bii) approved this Agreement Agreement, the Merger and the Mergerother Transactions and declared their advisability, and (Ciii) resolved to recommend recommended that the shareholders stockholders of New Core approve and the Company adopt this Agreement and the Merger and directed that this Agreement and the Merger be submitted for consideration by New Core’s shareholders the Company's stockholders at the Company Stockholders' Meeting (collectively, the "Company Board Recommendation"). The approval of this Agreement, the Merger and the other Transactions by the Company Board constitutes approval of this Agreement, the Merger and the other Transactions for approval purposes of Section 203 of the DGCL and adoption and (D) taken all other represents the only action necessary to render any ensure that Section 203 of the DGCL does not and all limitations on business combinations contained in the FBCA and the provisions of New Core’s articles of incorporation inapplicable will not apply to the transactions contemplated hereby. To the Knowledge execution and delivery of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable), no state takeover statute is applicable or purports to be applicable to the Merger this Agreement or the other transactions contemplated herebyconsummation of the Transactions.
(iib) The Except as contemplated by Section 2.06, the only vote of the holders of any class or series of capital stock or other securities of the Company necessary to approve this Agreement, the Merger and the other Transactions is the affirmative vote of the holders of a majority of the outstanding shares of New Core Company Common Stock in favor of the adoption of this Agreement (the “Required New Core Vote”) to approve and adopt this Agreement and the Merger is the only vote of the holders of any class or series of New Core capital stock necessary to approve or adopt this Agreement and the Merger and the other transactions contemplated hereby"Stockholder Approval").
Appears in 1 contract
Board Approval; Vote Required. (ia) The Board of Directors of New CoreCompany Board, by resolutions duly adopted by unanimous vote at a meeting duly called and held, or by action by unanimous written consent, and not subsequently rescinded or modified in any way, has as of the date of this Agreement duly (Ai) determined that this Agreement and the Merger are advisable fair to and in the best interests of New Core and its shareholdersthe Company’s stockholders, (Bii) approved this Agreement and declared its advisability, and (iii) recommended that the stockholders of the Company adopt this Agreement and directed that this Agreement be submitted for consideration by the Company’s stockholders at the Company Stockholders’ Meeting (collectively, the “Company Board Recommendation”). The approval by the Company Board of this Agreement and the Merger represents all the action necessary to render inapplicable to this Agreement and the Merger the provisions of Section 203 of the DGCL to the extent, if any, such Section would otherwise be applicable to this Agreement and the Merger, (C) resolved to recommend that the shareholders of New Core approve and adopt this Agreement and the Merger and directed that this Agreement and the Merger be submitted for consideration by New Core’s shareholders for approval and adoption and (D) taken all other action necessary to render any and all limitations on business combinations contained in the FBCA and the provisions of New Core’s articles of incorporation inapplicable and, to the transactions contemplated hereby. To knowledge of the Knowledge of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable)Company, no other state takeover statute is applicable or purports applies to be applicable to the Merger this Agreement or the other transactions contemplated herebyMerger.
(iib) The affirmative vote of the holders of a majority of the outstanding shares of New Core Common Stock (the “Required New Core Vote”) to approve and adopt this Agreement and the Merger is the only vote of the holders of any class or series of New Core capital stock of the Company necessary to approve or adopt this Agreement and is the Merger and adoption of this Agreement by holders of a majority of the other transactions contemplated hereby.outstanding shares of Company Common Stock entitled to vote thereon (the “Stockholder Approval”). Table of Contents
Appears in 1 contract
Board Approval; Vote Required. (ia) The Board of Directors of New CoreCompany Board, by resolutions duly adopted by unanimous vote at a meeting duly called and held, or by action by unanimous written consent, and not subsequently rescinded or modified in any way, has as of the date of this Agreement duly (Ai) determined that this Agreement and the Merger are advisable fair to and in the best interests of New Core and its shareholdersthe Company’s stockholders, (Bii) approved this Agreement and declared its advisability, and (iii) recommended that the stockholders of the Company adopt this Agreement and directed that this Agreement be submitted for consideration by the Company’s stockholders at the Company Stockholders’ Meeting (collectively, the “Company Board Recommendation”). The approval by the Company Board of this Agreement and the Merger represents all the action necessary to render inapplicable to this Agreement and the Merger the provisions of Section 203 of the DGCL to the extent, if any, such Section would otherwise be applicable to this Agreement and the Merger, (C) resolved to recommend that the shareholders of New Core approve and adopt this Agreement and the Merger and directed that this Agreement and the Merger be submitted for consideration by New Core’s shareholders for approval and adoption and (D) taken all other action necessary to render any and all limitations on business combinations contained in the FBCA and the provisions of New Core’s articles of incorporation inapplicable and, to the transactions contemplated hereby. To knowledge of the Knowledge of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable)Company, no other state takeover statute is applicable or purports applies to be applicable to the Merger this Agreement or the other transactions contemplated herebyMerger.
(iib) The affirmative vote of the holders of a majority of the outstanding shares of New Core Common Stock (the “Required New Core Vote”) to approve and adopt this Agreement and the Merger is the only vote of the holders of any class or series of New Core capital stock of the Company necessary to approve or adopt this Agreement and is the Merger and adoption of this Agreement by holders of a majority of the other transactions contemplated herebyoutstanding shares of Company Common Stock entitled to vote thereon (the “Stockholder Approval”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Psychiatric Solutions Inc)
Board Approval; Vote Required. (ia) The Company Board and the Independent Committee of the Board of Directors of New Core(the "Independent Committee"), by resolutions duly adopted by unanimous vote at a meeting duly called and held, which resolutions, subject to Section 6.04, have not been subsequently rescinded, modified or by action by unanimous written consent, and not subsequently rescinded or modified withdrawn in any way, has by unanimous vote of those directors present (who constituted 100% of the directors then in office, other than the Principal Stockholder) duly (Ai) determined that this Agreement, the Voting Agreement, the Contribution Agreement and the Merger and the Other Transactions are advisable fair to and in the best interests of New Core the Company and its shareholdersstockholders, (Bii) approved this Agreement Agreement, the Voting Agreement, the Contribution Agreement, the Merger and the MergerOther Transactions and declared their advisability, and (Ciii) resolved to recommend recommended that the shareholders stockholders of New Core approve and the Company adopt this Agreement and the Merger and directed that this Agreement and the Merger be submitted for consideration by New Core’s shareholders for the Company's stockholders at the Company Stockholders' Meeting. Assuming the accuracy of Parent's representations and warranties in Section 4.10, the approval and adoption and (D) taken all other action necessary to render any and all limitations on business combinations contained in of this Agreement, the FBCA Voting Agreement and the provisions Contribution Agreement by the Company Board and the Independent Committee constitutes approval of New Core’s articles of incorporation inapplicable to this Agreement, the transactions contemplated hereby. To Voting Agreement, the Knowledge of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable), no state takeover statute is applicable or purports to be applicable to the Merger or the other transactions contemplated hereby.
(ii) The affirmative vote of the holders of a majority of the outstanding shares of New Core Common Stock (the “Required New Core Vote”) to approve and adopt this Contribution Agreement and the Merger is for purposes of Section 203 of the DGCL ("Section 203") and represents the only vote of the holders of any class or series of New Core capital stock action necessary to approve ensure that the restrictions of Section 203 do not apply to the execution and delivery of this Agreement, the Voting Agreement or adopt this the Contribution Agreement and or the consummation of the Merger and the other transactions contemplated hereby.Other Transactions. No "fair price,"
Appears in 1 contract
Samples: Merger Agreement (Stone William C)
Board Approval; Vote Required. (ia) The Board of Directors of New CoreCompany Board, by resolutions duly adopted by unanimous vote at a meeting duly called and held, or by action by unanimous written consent, and not subsequently rescinded or modified in any way, has as of the date of this Agreement duly (Ai) determined that this Agreement and the Merger are advisable fair to and in the best interests of New Core the Company’s stockholders (other than holders of Shares that are affiliates of Parent and its shareholdersholders who will be parties to Employee Rollover Agreements), (Bii) approved this Agreement and declared its advisability, and (iii) recommended that the stockholders of the Company adopt this Agreement and directed that this Agreement be submitted for consideration by the Company’s stockholders at the Company Stockholders’ Meeting (collectively, the “Company Board Recommendation”). The approval of this Agreement by the Company Board constitutes approval of this Agreement and the Merger for purposes of Section 203 of the DGCL and represents the only action necessary to ensure that Section 203 of the DGCL does not and will not apply to the execution and delivery of this Agreement or the consummation of the Merger. To the knowledge of the Company, no other “control share acquisition,” “fair price” or other anti-takeover regulations enacted under state Laws in the United States apply to this Agreement or any of the transactions provided for herein.
(Cb) resolved The only vote of the holders of any class or series of capital stock or other securities of the Company necessary to recommend that the shareholders of New Core approve and adopt this Agreement and the Merger and directed that this Agreement and the Merger be submitted for consideration by New Core’s shareholders for approval and adoption and (D) taken all other action necessary to render any and all limitations on business combinations contained in the FBCA and the provisions of New Core’s articles of incorporation inapplicable to the transactions contemplated hereby. To the Knowledge of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable), no state takeover statute is applicable or purports to be applicable to the Merger or the other transactions contemplated hereby.
(ii) The by this Agreement is the affirmative vote of the holders of a majority of the outstanding shares of New Core Company Common Stock in favor of the adoption of this Agreement (the “Required New Core VoteStockholder Approval”) to approve and adopt this Agreement and the Merger is the only vote of the holders of any class or series of New Core capital stock necessary to approve or adopt this Agreement and the Merger and the other transactions contemplated hereby).
Appears in 1 contract
Samples: Merger Agreement (Bright Horizons Family Solutions Inc)
Board Approval; Vote Required. (ia) The Company Board of Directors of New Core, by resolutions duly adopted by unanimous vote at a meeting duly called and held, which resolutions, subject to Section 6.04, have not been subsequently rescinded, modified or by action by unanimous written consent, and not subsequently rescinded or modified withdrawn in any way, has by unanimous vote of those directors present (who constituted 100% of the directors then in office and duly elected, subject to the terms and conditions set forth herein, has (Ai) determined that this Agreement and the Merger are is advisable and in the best interests of New Core and its shareholdersthe Company's stockholders, (Bii) approved this Agreement, the Merger and the Other Transactions and (iii) recommended approval and adoption of this Agreement and the Merger, (C) resolved to recommend that the shareholders . The approval of New Core approve and adopt this Agreement and by the Company Board constitutes approval of this Agreement, the Merger and directed that this Agreement the other transactions contemplated hereby for purposes of Section 203 of the DGCL ("Section 203") and for all provisions of the Merger be submitted for consideration by New Core’s shareholders for approval Company's certificate of incorporation and adoption bylaws and (D) taken all other represents the only action necessary to render any ensure that the restrictions of Section 203 (and all limitations on business combinations contained the restrictions in the FBCA Company's certificate of incorporation and bylaws) do not apply to the execution and delivery of this Agreement or the consummation of the Merger and the provisions Other Transactions. No "fair price," "moratorium," "control share acquisition," or other similar anti-takeover statute or regulation enacted under state or federal Laws in the United States (with the exception of New Core’s articles of incorporation inapplicable Section 203) applicable to the transactions contemplated hereby. To the Knowledge of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable), no state takeover statute Company is applicable to this Agreement or purports to be applicable to the Merger or the Other Transactions. On May 25, 2007, the Company provided a notice of termination as of such date (the "Termination Notice") to AF Holdings, Inc. ("AFH") and AF Merger Sub, Inc. ("AFMS") of the Agreement and Plan of Merger, dated as of March 2, 2007, by and among the Company, AFH and AFMS (the "Prior Agreement") and in connection with such termination, paid on such date to AFH $22.5 million in respect of the Breakup Fee (as defined in the Prior Agreement). The Company Board determined on April 18, 2007 that The Veritas Capital Fund III, L.P. (together with its affiliates and co-investors) was an Excluded Party (as defined in the Prior Agreement) and determined on the Termination Date that the Acquisition Proposal (as defined in the Prior Agreement) reflected in the terms of this Agreement constitutes a Superior Proposal (as defined in the Prior Agreement) and that The Veritas Capital Fund III, L.P. (together with its affiliates and co-investors) is an Excluded Party (as defined in the Prior Agreement) and has not withdrawn, modified or rescinded any such determinations in any manner. Immediately prior to the sending of the Termination Notice to AFH and AFMS, the Company was not in breach of, had not previously breached and, except as set forth on Section 3.19(a) of the Company Disclosure Letter, the Company has not received any notice of any allegation of breach of the Prior Agreement and there were no other transactions contemplated herebyExcluded Parties.
(iib) The only vote of the holders of any class or series of capital stock or other securities of the Company necessary to adopt this Agreement or consummate the Merger or the Other Transactions under the DGCL, under the Company's certificate of incorporation or bylaws or under any other applicable Law, Contract to which the Company is a party or constituent document is the affirmative vote of the holders of a majority of the outstanding shares of New Core Company Common Stock entitled to vote in favor of the adoption of this Agreement (the “Required New Core Vote”) to approve and adopt this Agreement and the Merger is the only vote of the holders of any class or series of New Core capital stock necessary to approve or adopt this Agreement and the Merger and the other transactions contemplated hereby"Stockholder Approval").
Appears in 1 contract
Samples: Merger Agreement (Aeroflex Inc)
Board Approval; Vote Required. (ia) The Board of Directors of New Corethe Company, by resolutions duly adopted by unanimous vote at a meeting duly called and held, which resolutions, have not been subsequently rescinded, modified or by action by unanimous written consent, and not subsequently rescinded or modified withdrawn in any way, has by unanimous vote of those directors present duly (Ai) determined that this Agreement and the Merger and the Other Transactions are advisable fair to and in the best interests of New Core the Company and its shareholders, (Bii) approved this Agreement and the MergerMerger and the Other Transactions and declared their advisability, and (Ciii) resolved to recommend recommended that the shareholders of New Core the Company approve this Agreement and adopt the Other Transactions and directed that this Agreement be submitted for consideration by the Company’s shareholders at the Company Shareholders’ Meeting. The approval of this Agreement by the Board of Directors of the Company, constitutes approval of this Agreement and the Merger for purposes of Sections 351.459 and directed that this Agreement 351.407 of the MBCL and represents the Merger be submitted for consideration by New Core’s shareholders for approval and adoption and (D) taken all other only action necessary to render any ensure that Sections 351.459 and all limitations on business combinations contained 351.407 of the MBCL does not and will not apply to the execution and delivery of this Agreement or the consummation of the Merger and the Other Transactions. No “fair price,” “moratorium,” “control share acquisition,” or other similar anti-takeover statute or regulation enacted under state or federal Laws in the FBCA United States (with the exception of Section 351.459 and 351.407 of the provisions of New Core’s articles of incorporation inapplicable MBCL) applicable to the Company is applicable to the transactions contemplated hereby. To the Knowledge of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable), no state takeover statute is applicable or purports to be applicable to the Merger or the other transactions contemplated herebyby this Agreement.
(iib) The affirmative vote of the holders of a majority of the outstanding shares of New Core Common Stock (the “Required New Core Vote”) to approve and adopt this Agreement and the Merger is the only vote of the holders of any class or series of New Core capital stock or other securities of the Company necessary to approve or adopt this Agreement and or consummate the Merger and Other Transactions is the other transactions contemplated herebyCompany Shareholder Approval.
Appears in 1 contract
Samples: Agreement and Plan of Merger (DRS Technologies Inc)
Board Approval; Vote Required. (ia) The Company Board of Directors of New Core, by resolutions duly adopted by unanimous vote at a meeting duly called and held, which resolutions, subject to Section 6.04, have not been subsequently rescinded, modified or by action by unanimous written consent, and not subsequently rescinded or modified withdrawn in any way, has by unanimous vote of those directors present (who constituted 100% of the directors then in office and duly elected, subject to the terms and conditions set forth herein, has (Ai) determined that this Agreement and the Merger are is advisable and in the best interests of New Core and its shareholdersthe Company’s stockholders, (Bii) approved this Agreement, the Merger and the Other Transactions and (iii) recommended approval and adoption of this Agreement and the Merger, (C) resolved to recommend that the shareholders . The approval of New Core approve and adopt this Agreement and by the Company Board constitutes approval of this Agreement, the Merger and directed that this Agreement the other transactions contemplated hereby for purposes of Section 203 of the DGCL (“Section 203”) and for all provisions of the Merger be submitted for consideration by New CoreCompany’s shareholders for approval certificate of incorporation and adoption bylaws and (D) taken all other represents the only action necessary to render any ensure that the restrictions of Section 203 (and all limitations on business combinations contained the restrictions in the FBCA Company’s certificate of incorporation and bylaws) do not apply to the execution and delivery of this Agreement or the consummation of the Merger and the provisions Other Transactions. No “fair price,” “moratorium,” “control share acquisition,” or other similar anti-takeover statute or regulation enacted under state or federal Laws in the United States (with the exception of New Core’s articles of incorporation inapplicable Section 203) applicable to the transactions contemplated hereby. To the Knowledge of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable), no state takeover statute Company is applicable to this Agreement or purports to be applicable to the Merger or the Other Transactions. On May 25, 2007, the Company provided a notice of termination as of such date (the “Termination Notice”) to AF Holdings, Inc. (“AFH”) and AF Merger Sub, Inc. (“AFMS”) of the Agreement and Plan of Merger, dated as of March 2, 2007, by and among the Company, AFH and AFMS (the “Prior Agreement”) and in connection with such termination, paid on such date to AFH $22.5 million in respect of the Breakup Fee (as defined in the Prior Agreement). The Company Board determined on April 18, 2007 that The Veritas Capital Fund III, L.P. (together with its affiliates and co-investors) was an Excluded Party (as defined in the Prior Agreement) and determined on the Termination Date that the Acquisition Proposal (as defined in the Prior Agreement) reflected in the terms of this Agreement constitutes a Superior Proposal (as defined in the Prior Agreement) and that The Veritas Capital Fund III, L.P. (together with its affiliates and co-investors) is an Excluded Party (as defined in the Prior Agreement) and has not withdrawn, modified or rescinded any such determinations in any manner. Immediately prior to the sending of the Termination Notice to AFH and AFMS, the Company was not in breach of, had not previously breached and, except as set forth on Section 3.19(a) of the Company Disclosure Letter, the Company has not received any notice of any allegation of breach of the Prior Agreement and there were no other transactions contemplated herebyExcluded Parties.
(iib) The only vote of the holders of any class or series of capital stock or other securities of the Company necessary to adopt this Agreement or consummate the Merger or the Other Transactions under the DGCL, under the Company’s certificate of incorporation or bylaws or under any other applicable Law, Contract to which the Company is a party or constituent document is the affirmative vote of the holders of a majority of the outstanding shares of New Core Company Common Stock entitled to vote in favor of the adoption of this Agreement (the “Required New Core VoteStockholder Approval”) to approve and adopt this Agreement and the Merger is the only vote of the holders of any class or series of New Core capital stock necessary to approve or adopt this Agreement and the Merger and the other transactions contemplated hereby).
Appears in 1 contract
Samples: Merger Agreement (Aeroflex Inc)
Board Approval; Vote Required. (ia) The Company Board of Directors of New Coreand the Special Committee, by resolutions duly adopted by unanimous vote at a meeting duly called and held, which resolutions, subject to Section 6.04, have not been subsequently rescinded, modified or by action by unanimous written consent, and not subsequently rescinded or modified withdrawn in any way, has by unanimous vote of those directors, or members, as the case may be, present (who constituted 100% of the directors or members, as the case may be, then in office) duly (Ai) determined that this Agreement Agreement, the Merger and the Merger Other Transactions are advisable fair to and in the best interests of New Core the Company and its shareholdersstockholders, (Bii) approved this Agreement, the Merger and the Other Transactions and with respect to this Agreement, declared its advisability, and (iii) recommended that the stockholders of the Company adopt this Agreement and directed that this Agreement be submitted for consideration by the MergerCompany’s stockholders at the Company Stockholders’ Meeting. Assuming the accuracy of Parent’s representations and warranties in Section 4.10, (C) resolved to recommend that the shareholders approval of New Core approve this Agreement by the Company Board and adopt the Special Committee constitutes approval of this Agreement and the Merger for purposes of Section 203 of the DGCL (“Section 203”) and directed that this Agreement and represents the Merger be submitted for consideration by New Core’s shareholders for approval and adoption and (D) taken all other only action necessary to render any ensure that the restrictions on "Business Combinations" (as that term is defined in Section 203) of Section 203 do not apply to the execution and all limitations on business combinations contained delivery of this Agreement or the consummation of the Merger and the Other Transactions. To the knowledge of the Company, no “fair price,” “moratorium,” “control share acquisition,” or other similar anti-takeover statute or regulation enacted under state or federal laws in the FBCA and United States (with the provisions exception of New Core’s articles of incorporation inapplicable Section 203) applicable to the Company is applicable to the transactions contemplated hereby. To the Knowledge of New Core, except for the limitations on business combinations contained in the FBCA (which have been rendered inapplicable), no state takeover statute is applicable or purports to be applicable to the Merger or the other transactions contemplated herebyby this Agreement.
(iib) The affirmative vote Assuming the accuracy of the holders of a majority of the outstanding shares of New Core Common Stock (the “Required New Core Vote”) to approve Parent’s representations and adopt this Agreement and the Merger is warranties in Section 4.10, the only vote of the holders of any class or series of New Core capital stock or other securities of the Company necessary to approve or adopt this Agreement and or consummate the Merger and Other Transactions is the other transactions contemplated herebyRequisite Stockholder Vote.
Appears in 1 contract