Communications; Press Release; SEC Filings. (a) As promptly as practicable following the Effective Date (and in any event within four (4) Business Days thereafter), SPAC shall prepare and file a Current Report on Form 8-K pursuant to the Securities Exchange Act to report the execution of this Agreement (the “Signing Form 8-K”) and the Parties shall issue a mutually agreeable press release announcing the execution of this Agreement (the “Signing Press Release”). SPAC shall provide the Parent with a reasonable opportunity to review and comment on the Signing Form 8-K prior to its filing and shall consider such comments in good faith. SPAC shall not file any such documents with the SEC without the prior written consent of the Parent (such consent not to be unreasonably withheld, conditioned or delayed). (b) As promptly as reasonably practicable after the Effective Date, but in any event following delivery of any information required to be delivered by the Parent pursuant to this Section 9.8, (i) the Parties shall prepare and SPAC shall file with the SEC a preliminary Proxy/Registration Statement (which shall comply as to form with, as applicable, the provisions of the Securities Act, the Securities Exchange Act and the rules and regulations promulgated thereunder) in connection with SPAC Shareholder Meeting for the purpose of (A) providing SPAC Shareholders with the opportunity to participate in SPAC Share Redemption and (B) soliciting proxies from SPAC Shareholders to vote at SPAC Shareholder Meeting in favor of SPAC Shareholder Voting Matters. Each of SPAC and the Parent shall use its reasonable best efforts to cause the Proxy/Registration Statement to comply with the rules and regulations promulgated by the SEC. SPAC shall file the definitive Proxy/Registration Statement with the SEC and cause the Proxy/Registration Statement to be mailed to its shareholders of record, as of the record date to be established by SPAC Board in accordance with Section 9.8(h), at such time as reasonably agreed by SPAC and the Parent promptly (and in any event within five (5) Business Days) following (x) in the event the preliminary Proxy/Registration Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Securities Exchange Act or (y) in the event the preliminary Proxy/Registration Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC (the date in (x) or (y), the “Proxy Clearance Date”). (c) Prior to filing with the SEC, SPAC and the Parent will make available to each other, respectively, drafts of the Proxy/Registration Statement and any other documents to be filed with the SEC that relate to the transactions completed hereby, both preliminary and final, and drafts of any amendment or supplement to the Proxy/Registration Statement or such other document and will provide the Parent with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. SPAC will advise the Parent promptly after it receives notice of (i) the time when the Proxy/Registration Statement has been filed, (ii) in the event the preliminary Proxy/Registration Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Securities Exchange Act, (iii) in the event the preliminary Proxy/Registration Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC, (iv) the filing of any supplement or amendment to the Proxy/Registration Statement, (v) any request by the SEC for amendment of the Proxy/Registration Statement, (vi) any comments, written or oral, from the SEC relating to the Proxy/Registration Statement and responses thereto and (vii) requests by the SEC for additional information in connection with the Proxy/Registration Statement. SPAC shall promptly respond to any comments of the SEC on the Proxy/Registration Statement, and shall use its reasonable best efforts to have the Proxy/Registration Statement cleared by the SEC under the Securities Exchange Act as soon after filing as practicable; provided that prior to responding to any requests or comments from the SEC, SPAC will make available to the Parent drafts of any such response, will provide the Parent with reasonable opportunity to comment on such drafts. (d) If at any time prior to the Closing (including prior to SPAC Shareholder Meeting) any Party discovers or becomes aware of any information that is required to be set forth in an amendment or supplement to the Proxy/Registration Statement so that the Proxy/Registration Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such Party shall promptly inform the other Parties hereto and the Parties shall cooperate reasonably in connection with preparing and, to the extent required by Law, disseminating (including by promptly transmitting to SPAC Shareholders) any such amendment or supplement to the Proxy/Registration Statement containing such information; provided that no information received by SPAC pursuant to this Section 9.8(d) shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made hereunder by any Party, and no such information shall be deemed to change, supplement or amend the Schedules hereto. (e) The Parties acknowledge that a substantial portion of the Proxy/Registration Statement and certain other forms, reports and other filings required to be made by SPAC under the Securities Exchange Act in connection with the transactions contemplated by this Agreement (collectively, “Additional SPAC Filings”) shall include disclosure regarding the Target and the business of the Target. Accordingly, the Parent agrees to, as promptly as reasonably practicable, to use commercially reasonable efforts to provide SPAC with all information concerning the Target, and its business, management, operations and financial condition, in each case, that is reasonably requested by SPAC to be included in the Proxy/Registration Statement, Additional SPAC Filings or any other SPAC filing with the SEC. The Parent shall use commercially reasonable efforts to make and shall cause its Affiliates, directors, officers, managers and employees to make, available to SPAC and its counsel, auditors and other representatives in connection with the drafting of the Proxy/Registration Statement and Additional SPAC Filings, as reasonably requested by SPAC, and responding in a timely manner to comments thereto from the SEC. SPAC shall make all required filings with respect to the transactions contemplated by this Agreement under the Securities Act, the Securities Exchange Act and applicable blue sky Laws and the rules and regulations thereunder, and the Parent shall reasonably cooperate in connection therewith. (f) At least five (5) days prior to Closing, SPAC shall begin preparing a draft Current Report on Form 8-K in connection with and announcing the Closing, together with, or incorporating by reference, such information that is or may be required to be disclosed with respect to the transactions contemplated by this Agreement pursuant to Form 8-K (the “Closing Form 8- K”). SPAC shall provide the Parent with a reasonable opportunity to review and comment on the Closing Form 8-K prior to its filing and shall consider such comments in good faith. Prior to the Closing, the Parties shall prepare a mutually agreeable press release announcing the consummation of the transactions contemplated by this Agreement (“Closing Press Release”). Concurrently or promptly following with the Closing, NewCo shall distribute the Closing Press Release, and within four (4) Business Days thereafter, file the Closing Form 8-K with the SEC. (g) Target will deliver to SPAC prior to Closing (i) audited standalone balance sheet of Target as of March 31, 2023, March 31, 2022 and March 31, 2021, and related audited statements of operations, partners’ equity and cash flows for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of the Parent’s independent auditors (which reports shall be unqualified), prepared in accordance with IFRS, applied on a consistent basis throughout the covered periods and Regulation S-X of the SEC and in each case, audited in accordance with the standards of the PCAOB (the “PCAOB Financial Statements”), and (ii) all other audited and unaudited financial statements of Target and any company or business units acquired by Target, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Proxy/Registration Statement and/or the Closing Form 8-K (including pro forma financial information). (h) SPAC shall, prior to or as promptly as practicable following the Proxy Clearance Date (and in no event later than the date the Proxy/Registration Statement is required to be mailed in accordance with Section 9.8(b)), establish a record date in accordance with the terms of SPAC Existing Memorandum and Articles (which date shall be mutually agreed with the Parent) for, duly call and give notice of, SPAC Shareholder Meeting. SPAC shall convene and hold SPAC Shareholder Meeting, for the purpose of obtaining the requisite approval of SPAC Shareholder Voting Matters, which meeting shall be held as promptly as practicable after the date on which SPAC commences the mailing of the Proxy/Registration Statement to its shareholders; provided that in no event shall such meeting be held more than forty-five (45) days after such mailing date (unless the meeting has been adjourned as set out in the Proxy/Registration Statement). SPAC shall take all actions necessary to obtain the approval of SPAC Shareholder Voting Matters at SPAC Shareholder Meeting, including as such SPAC Shareholder Meeting may be adjourned or postponed in accordance with this Agreement, including by soliciting proxies as promptly as practicable in accordance with applicable Law for the purpose of seeking the approval of SPAC Shareholder Voting Matters. Except as otherwise required by applicable Law (including, for the avoidance of doubt, the fiduciary duties of the members of SPAC Board), SPAC Board shall include the SPAC Board Recommendation in the Proxy/Registration Statement and any amended or supplemental statement sent to SPAC Shareholders and shall not (and no committee or subgroup thereof shall) (i) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, SPAC Board Recommendation, (ii) adopt, approve, endorse or recommend any SPAC Competing Transaction, (iii) following a request in writing by the Parent that SPAC Board Recommendation be reaffirmed publicly, fail to reaffirm publicly SPAC Board Recommendation within ten (10) days after the Parent made such request (it being agreed that the Parent may only make one (1) request per calendar month pursuant to this clause (iii); provided that SPAC (A) has not already publicly reaffirmed such SPAC Board Recommendation or (B) has made a change in SPAC Board Recommendation or is reasonably likely to do so in such ten (10) day period), or (iv) agree to take any of the foregoing actions. SPAC agrees that its obligation to establish a record date for, duly call, give notice of, convene and hold SPAC Shareholder Meeting for the purpose of seeking approval of SPAC Shareholder Voting Matters shall not be affected by intervening events or circumstances, and SPAC agrees to establish a record date for, duly call, give notice of, convene and hold SPAC Shareholder Meeting and submit for the approval of SPAC Shareholders SPAC Shareholder Voting Matters, in each case as contemplated by this Section 9.8(h), regardless of whether or not there shall have occurred any intervening events or circumstances. Notwithstanding anything to the contrary contained in this Agreement, SPAC only shall be entitled to postpone or adjourn SPAC Shareholder Meeting: (A) to allow reasonable additional time for the filing or mailing of any supplement or amendment to the Proxy/Registration Statement that SPAC Board has determined in good faith after consultation with outside legal counsel is required under applicable Law, which supplement or amendment shall be promptly disseminated to SPAC’s shareholders prior to SPAC Shareholder Meeting; (B) if, as of the time for which SPAC Shareholder Meeting is originally scheduled (as set forth in the Proxy/Registration Statement), there are insufficient shares of SPAC represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at SPAC Shareholder Meeting; (C) to seek withdrawals of redemption requests from SPAC Shareholders; or (D) in order to solicit additional proxies from shareholders for purposes of obtaining approval of SPAC Shareholder Voting Matters; provided that in the event of any such postponement or adjournment, SPAC Shareholder Meeting shall be reconvened as promptly as practicable following such time, and in no event later than ten (10) Business Days following such time, as the matters described in such clauses have been resolved.

Appears in 1 contract

Samples: Business Combination Agreement

Communications; Press Release; SEC Filings. (a) As promptly as practicable following the Effective Date (and in any event within four (4) Business Days thereafter), SPAC shall prepare and file a Current Report on Form 8-K pursuant to the Securities Exchange Act to report the execution of this Agreement (the “Signing Form 8-K”) and the Parties shall issue a mutually agreeable press release announcing the execution of this Agreement (the “Signing Press Release”). SPAC shall provide the Parent with a reasonable opportunity to review and comment on the Signing Form 8-K prior to its filing and shall consider such comments in good faith. SPAC shall not file any such documents with the SEC without the prior written consent of the Parent (such consent not to be unreasonably withheld, conditioned or delayed). (b) As promptly as reasonably practicable after the Effective Date, but in any event following delivery of any information required to be delivered by the Parent pursuant to this Section 9.8, (i) the Parties shall prepare and SPAC shall file with the SEC a preliminary Proxy/Registration Statement (which shall comply as to form with, as applicable, the provisions of the Securities Act, the Securities Exchange Act and the rules and regulations promulgated thereunder) in connection with SPAC Shareholder Meeting for the purpose of (A) providing SPAC Shareholders with the opportunity to participate in SPAC Share Redemption and (B) soliciting proxies from SPAC Shareholders to vote at SPAC Shareholder Meeting in favor of SPAC Shareholder Voting Matters. Each of SPAC and the Parent shall use its reasonable best efforts to cause the Proxy/Registration Statement to comply with the rules and regulations promulgated by the SEC. SPAC shall file the definitive Proxy/Registration Statement with the SEC and cause the Proxy/Registration Statement to be mailed to its shareholders of record, as of the record date to be established by SPAC Board in accordance with Section 9.8(h), at such time as reasonably agreed by SPAC and the Parent promptly (and in any event within five (5) Business Days) following (x) in the event the preliminary Proxy/Registration Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Securities Exchange Act or (y) in the event the preliminary Proxy/Registration Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC (the date in (x) or (y), the “Proxy Clearance Date”). (c) Prior to filing with the SEC, the SPAC and the Parent will make available to each other, respectively, drafts of the Proxy/Registration Statement and any other documents to be filed with the SEC that relate to the transactions completed hereby, both preliminary and final, and drafts of any amendment or supplement to the Proxy/Registration Statement or such other document and will provide the Parent with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. SPAC will advise the Parent promptly after it receives notice of (i) the time when the Proxy/Registration Statement has been filed, (ii) in the event the preliminary Proxy/Registration Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Securities Exchange Act, (iii) in the event the preliminary Proxy/Registration Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC, (iv) the filing of any supplement or amendment to the Proxy/Registration Statement, (v) any request by the SEC for amendment of the Proxy/Registration Statement, (vi) any comments, written or oral, from the SEC relating to the Proxy/Registration Statement and responses thereto and (vii) requests by the SEC for additional information in connection with the Proxy/Registration Statement. SPAC shall promptly respond to any comments of the SEC on the Proxy/Registration Statement, and shall use its reasonable best efforts to have the Proxy/Registration Statement cleared by the SEC under the Securities Exchange Act as soon after filing as practicable; provided that prior to responding to any requests or comments from the SEC, SPAC will make available to the Parent drafts of any such response, will provide the Parent with reasonable opportunity to comment on such drafts. (d) If at any time prior to the Closing (including prior to SPAC Shareholder Meeting) any Party discovers or becomes aware of any information that is required to be set forth in an amendment or supplement to the Proxy/Registration Statement so that the Proxy/Registration Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such Party shall promptly inform the other Parties hereto and the Parties shall cooperate reasonably in connection with preparing and, to the extent required by Law, disseminating (including by promptly transmitting to SPAC Shareholders) any such amendment or supplement to the Proxy/Registration Statement containing such information; provided that no information received by SPAC pursuant to this Section 9.8(d) shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made hereunder by any Party, and no such information shall be deemed to change, supplement or amend the Schedules hereto. (e) The Parties acknowledge that a substantial portion of the Proxy/Registration Statement and certain other forms, reports and other filings required to be made by SPAC under the Securities Exchange Act in connection with the transactions contemplated by this Agreement (collectively, “Additional SPAC Filings”) shall include disclosure regarding the Target and the business of the Target. Accordingly, the Parent agrees to, as promptly as reasonably practicable, to use commercially reasonable efforts to provide SPAC with all information concerning the Target, and its business, management, operations and financial condition, in each case, that is reasonably requested by SPAC to be included in the Proxy/Registration Statement, Additional SPAC Filings or any other SPAC filing with the SEC. The Parent shall use commercially reasonable efforts to make and shall cause its Affiliates, directors, officers, managers and employees to make, available to SPAC and its counsel, auditors and other representatives in connection with the drafting of the Proxy/Registration Statement and Additional SPAC Filings, as reasonably requested by SPAC, and responding in a timely manner to comments thereto from the SEC. SPAC shall make all required filings with respect to the transactions contemplated by this Agreement under the Securities Act, the Securities Exchange Act and applicable blue sky Laws and the rules and regulations thereunder, and the Parent shall reasonably cooperate in connection therewith. (f) At least five (5) days prior to Closing, ~~SPAC~~ Target shall begin preparing a draft Current Report on Form 8-K in connection with and announcing the Closing, together with, or incorporating by reference, such information that is or may be required to be disclosed with respect to the transactions contemplated by this Agreement pursuant to Form 8-K (the “Closing Form 8- 8-K”). ~~SPAC~~ The Parent shall provide ~~the Parent~~ SPAC with a reasonable opportunity to review and comment on the Closing Form 8-K prior to its filing and shall consider such comments in good faith. Prior to the Closing, the Parties shall prepare a mutually agreeable press release announcing the consummation of the transactions contemplated by this Agreement (“Closing Press Release”). Concurrently or promptly following with the Closing, ~~NewCo~~ the Target shall distribute the Closing Press Release, and within four (4) Business Days thereafter, file the Closing Form 8-K with the SEC. (g) ~~Target~~ The Parent will deliver to the SPAC ~~prior to Closing~~ by February 28, 2023 (i) audited standalone balance sheet of the Target as of March 31, ~~2023~~2021, March 31, 2022 and ~~March~~ December 31, ~~2021~~2022, and related audited statements of operations, partners’ equity and cash flows for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of the Parent’s independent auditors (which reports shall be unqualified), prepared in accordance with IFRS, applied on a consistent basis throughout the covered periods and Regulation S-X of the SEC and in each case, audited in accordance with the standards of the PCAOB (the “PCAOB Financial Statements”), and (ii) all other audited and unaudited financial statements of the Target and any company or business units acquired by the Target, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Proxy/Registration Statement and/or the Closing Form 8-K (including pro forma financial information). (h) SPAC shall, prior to or as promptly as practicable following the Proxy Clearance Date (and in no event later than the date the Proxy/Registration Statement is required to be mailed in accordance with Section 9.8(b)), establish a record date in accordance with the terms of SPAC Existing Memorandum and Articles (which date shall be mutually agreed with the Parent) for, duly call and give notice of, SPAC Shareholder Meeting. SPAC shall convene and hold SPAC Shareholder Meeting, for the purpose of obtaining the requisite approval of SPAC Shareholder Voting Matters, which meeting shall be held as promptly as practicable after the date on which SPAC commences the mailing of the Proxy/Registration Statement to its shareholders; provided that in no event shall such meeting be held more than forty-five (45) days after such mailing date (unless the meeting has been adjourned as set out in the Proxy/Registration Statement). SPAC shall take all actions necessary to obtain the approval of SPAC Shareholder Voting Matters at SPAC Shareholder Meeting, including as such SPAC Shareholder Meeting may be adjourned or postponed in accordance with this Agreement, including by soliciting proxies as promptly as practicable in accordance with applicable Law for the purpose of seeking the approval of SPAC Shareholder Voting Matters. Except as otherwise required by applicable Law (including, for the avoidance of doubt, the fiduciary duties of the members of SPAC Board), SPAC Board shall include the SPAC Board Recommendation in the Proxy/Registration Statement and any amended or supplemental statement sent to SPAC Shareholders and shall not (and no committee or subgroup thereof shall) (i) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, SPAC Board Recommendation, (ii) adopt, approve, endorse or recommend any SPAC Competing Transaction, (iii) following a request in writing by the Parent that SPAC Board Recommendation be reaffirmed publicly, fail to reaffirm publicly SPAC Board Recommendation within ten (10) days after the Parent made such request (it being agreed that the Parent may only make one (1) request per calendar month pursuant to this clause (iii); provided that SPAC (A) has not already publicly reaffirmed such SPAC Board Recommendation or (B) has made a change in SPAC Board Recommendation or is reasonably likely to do so in such ten (10) day period), or (iv) agree to take any of the foregoing actions. SPAC agrees that its obligation to establish a record date for, duly call, give notice of, convene and hold SPAC Shareholder Meeting for the purpose of seeking approval of SPAC Shareholder Voting Matters shall not be affected by intervening events or circumstances, and SPAC agrees to establish a record date for, duly call, give notice of, convene and hold SPAC Shareholder Meeting and submit for the approval of SPAC Shareholders SPAC Shareholder Voting Matters, in each case as contemplated by this Section 9.8(h), regardless of whether or not there shall have occurred any intervening events or circumstances. Notwithstanding anything to the contrary contained in this Agreement, SPAC only shall be entitled to postpone or adjourn SPAC Shareholder Meeting: (A) to allow reasonable additional time for the filing or mailing of any supplement or amendment to the Proxy/Registration Statement that SPAC Board has determined in good faith after consultation with outside legal counsel is required under applicable Law, which supplement or amendment shall be promptly disseminated to SPAC’s shareholders prior to SPAC Shareholder Meeting; (B) if, as of the time for which SPAC Shareholder Meeting is originally scheduled (as set forth in the Proxy/Registration Statement), there are insufficient shares of SPAC represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at SPAC Shareholder Meeting; (C) to seek withdrawals of redemption requests from SPAC Shareholders; or (D) in order to solicit additional proxies from shareholders for purposes of obtaining approval of SPAC Shareholder Voting Matters; provided that in the event of any such postponement or adjournment, SPAC Shareholder Meeting shall be reconvened as promptly as practicable following such time, and in no event later than ten (10) Business Days following such time, as the matters described in such clauses have been resolved.

Appears in 1 contract

Samples: Business Combination Agreement (Newcourt Acquisition Corp)

Communications; Press Release; SEC Filings. (a) As promptly as practicable following the Effective Date (and in any event within four (4) Business Days thereafter), ~~SPAC~~ the Investor shall prepare and file a Current Report on Form 8-K pursuant to the Securities Exchange Act to report the execution of this Agreement (the “Signing Form 8-K”) and the Parties shall issue a mutually agreeable press release announcing the execution of this Agreement (the “Signing Press Release”). ~~SPAC~~ The Investor shall provide the ~~Parent~~ Company with a reasonable opportunity to review and comment on the Signing Form 8-K prior to its filing and shall consider such comments in good faith. ~~SPAC~~ Investor shall not file any such documents with the SEC without the prior written consent of the ~~Parent~~ Company (such consent not to be unreasonably withheld, conditioned or delayed). (b) As promptly as reasonably practicable after the Effective Date, but in any event following delivery of any information required to be delivered by the ~~Parent~~ Company pursuant to this Section ~~9.8~~8.9, (i) the ~~Parties~~ Investor and the Company shall prepare and ~~SPAC~~ the Investor shall file with the SEC a preliminary ~~Proxy/Registration~~ Proxy Statement (which shall comply as to form with, as applicable, the provisions of the Securities Act, the Securities Exchange Act and the rules and regulations promulgated thereunder) in connection with ~~SPAC~~ the Investor Shareholder Meeting for the purpose of (A) providing ~~SPAC~~ Investor Shareholders with the opportunity to participate in ~~SPAC~~ the Investor Share Redemption and (B) soliciting proxies from ~~SPAC~~ the Investor Shareholders to vote at ~~SPAC~~ the Investor Shareholder Meeting in favor of ~~SPAC~~ the Investor Shareholder Voting Matters. Each of ~~SPAC~~ the Investor and the ~~Parent~~ Company shall use its reasonable best efforts to cause the ~~Proxy/Registration~~ Proxy Statement to comply with the rules and regulations promulgated by the SEC. ~~SPAC~~ The Investor shall file the definitive ~~Proxy/Registration~~ Proxy Statement with the SEC and cause the ~~Proxy/Registration~~ Proxy Statement to be mailed to its ~~shareholders~~ stockholders of record, as of the record date to be established by ~~SPAC~~ the Investor Board in accordance with Section ~~9.8(h~~8.9(h), at such time as reasonably agreed by ~~SPAC~~ Investor and the ~~Parent~~ Company promptly (and in any event within five (5) Business Days) following (x) in the event the preliminary ~~Proxy/Registration~~ Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Securities Exchange Act or (y) in the event the preliminary ~~Proxy/Registration~~ Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC (the date in (x) or (y), the “Proxy Clearance Date”). (c) Prior to filing with the SEC, ~~SPAC and~~ the ~~Parent~~ Investor will make available to ~~each other, respectively,~~ the Company drafts of the ~~Proxy/Registration~~ Proxy Statement and any other documents to be filed with the SEC that relate to the transactions completed hereby, both preliminary and final, and drafts of any amendment or supplement to the ~~Proxy/Registration~~ Proxy Statement or such other document and will provide the ~~Parent~~ Company with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. ~~SPAC~~ The Investor will advise the ~~Parent~~ Company promptly after it receives notice of (i) the time when the ~~Proxy/Registration~~ Proxy Statement has been filed, (ii) in the event the preliminary ~~Proxy/Registration~~ Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Securities Exchange Act, (iii) in the event the preliminary ~~Proxy/Registration~~ Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC, (iv) the filing of any supplement or amendment to the ~~Proxy/Registration~~ Proxy Statement, (v) any request by the SEC for amendment of the ~~Proxy/Registration~~ Proxy Statement, (vi) any comments, written or oral, from the SEC relating to the ~~Proxy/Registration~~ Proxy Statement and responses thereto and (vii) requests by the SEC for additional information in connection with the ~~Proxy/Registration~~ Proxy Statement. ~~SPAC~~ The Investor shall promptly respond to any comments of the SEC on the ~~Proxy/Registration~~ Proxy Statement, and shall use its reasonable best efforts to have the ~~Proxy/Registration~~ Proxy Statement cleared by the SEC under the Securities Exchange Act as soon after filing as practicable; provided that prior to responding to any requests or comments from the SEC, ~~SPAC~~ Investor will make available to the ~~Parent~~ Company drafts of any such response, will provide the ~~Parent~~ Company with reasonable opportunity to comment on such drafts. (d) If at any time prior to the Closing (including prior to ~~SPAC~~ the Investor Shareholder Meeting) any Party discovers or becomes aware of any information that is required to be set forth in an amendment or supplement to the ~~Proxy/Registration~~ Proxy Statement so that the ~~Proxy/Registration~~ Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such Party shall promptly inform the other Parties hereto and the Parties shall cooperate reasonably in connection with preparing and, to the extent required by Law, disseminating (including by promptly transmitting to ~~SPAC~~ the Investor Shareholders) any such amendment or supplement to the ~~Proxy/Registration~~ Proxy Statement containing such information; provided that no information received by ~~SPAC~~ the Investor pursuant to this Section ~~9.8(d~~8.9(d) shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made hereunder by any Party, and no such information shall be deemed to change, supplement or amend the Schedules hereto. (e) The Parties acknowledge that a substantial portion of the ~~Proxy/Registration~~ Proxy Statement and certain other forms, reports and other filings required to be made by ~~SPAC~~ the Investor under the Securities Exchange Act in connection with the transactions contemplated by this Agreement (collectively, “Additional ~~SPAC~~ Investor Filings”) shall include disclosure regarding the ~~Target~~ Company and the business of the ~~Target~~Company’s management, operations and financial condition. Accordingly, ML Parties and the ~~Parent agrees~~ ML Companies agree to, and agree to cause the ML Companies to, as promptly as reasonably practicable, to use commercially reasonable efforts to provide ~~SPAC~~ the Investor with all information concerning ML Parties, the ~~Target~~ML Companies, and ~~its~~ their respective business, management, operations and financial condition, in each case, that is reasonably requested by ~~SPAC~~ the Investor to be included in the ~~Proxy/Registration~~ Proxy Statement, Additional ~~SPAC~~ Investor Filings or any other ~~SPAC~~ Investor filing with the SEC. ~~The Parent~~ ML Parties and the ML Companies shall ~~use commercially reasonable efforts to make~~ make, and shall cause ~~its~~ The ML Companies to, make, and shall cause their Affiliates, directors, officers, managers and employees to make, available to ~~SPAC~~ the Investor and its counsel, auditors and other representatives in connection with the drafting of the ~~Proxy/Registration~~ Proxy Statement and Additional ~~SPAC~~ Investor Filings, as reasonably requested by ~~SPAC~~the Investor, and responding in a timely manner to comments thereto from the SEC. ~~SPAC~~ The Investor shall make all required filings with respect to the transactions contemplated by this Agreement under the Securities Act, the Securities Exchange Act and applicable blue sky Laws and the rules and regulations thereunder, and the ~~Parent~~ ML Parties and the ML Companies shall reasonably cooperate in connection therewith. (f) At least five (5) days prior to Closing, ~~SPAC~~ the Investor shall begin preparing a draft Current Report on Form 8-K in connection with and announcing the Closing, together with, or incorporating by reference, such information that is or may be required to be disclosed with respect to the transactions contemplated by this Agreement pursuant to Form 8-K (the “Closing Form 8- 8-K”). ~~SPAC~~ Investor shall provide the ~~Parent~~ Company with a reasonable opportunity to review and comment on the Closing Form 8-K prior to its filing and shall consider such comments in good faith. Prior to the Closing, the Parties shall prepare a mutually agreeable press release announcing the consummation of the transactions contemplated by this Agreement (“Closing Press Release”). Concurrently or promptly following with the Closing, ~~NewCo~~ the Investor shall distribute the Closing Press Release, and within four (4) Business Days thereafter, file the Closing Form 8-K with the SEC. (g) ~~Target will deliver~~ The Company shall provide to ~~SPAC prior to Closing~~ the Investor as promptly as reasonably practicable after the Effective Date, (i) audited ~~standalone~~ consolidated balance ~~sheet~~ sheets of ~~Target~~ the Company as of ~~March 31, 2023, March 31, 2022 and March 31~~June 30, 2021, and related audited consolidated statements of operations, partners’ equity and cash flows for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of the ~~Parent~~Company’s independent auditors (which reports shall be unqualified), prepared in accordance with ~~IFRS~~GAAP, applied on a consistent basis throughout the covered periods and Regulation S-X of the SEC and in each case, audited in accordance with the standards of the PCAOB (the “PCAOB Financial Statements”), and (ii) all other audited and unaudited financial statements of ~~Target~~ the Company and any company or business units acquired by ~~Target~~the Company, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the ~~Proxy/Registration~~ Proxy Statement and/or the Closing Form 8-K (including pro forma financial information). (h) ~~SPAC~~ Investor shall, prior to or as promptly as practicable following the Proxy Clearance Date (and in no event later than the date the ~~Proxy/Registration~~ Proxy Statement is required to be mailed in accordance with Section ~~9.8(b~~8.9(b)), establish a record date in accordance with the terms of ~~SPAC~~ the Investor Existing Memorandum and Articles of Association (which date shall be mutually agreed with the ~~Parent~~Company) for, duly call and give notice of, ~~SPAC~~ the Investor Shareholder Meeting. ~~SPAC~~ Investor shall convene and hold ~~SPAC~~ the Investor Shareholder Meeting, for the purpose of obtaining the ~~requisite~~ approval of ~~SPAC~~ the Investor Shareholder Voting Matters, which meeting shall be held as promptly as practicable after the date on which ~~SPAC~~ Investor commences the mailing of the ~~Proxy/Registration~~ Proxy Statement to its shareholders; provided that in no event shall such meeting be held more than forty-five (45) days after such mailing date (unless the meeting has been adjourned as set out in the ~~Proxy/Registration~~ Proxy Statement). ~~SPAC~~ Investor shall take all actions necessary to obtain the approval of ~~SPAC~~ the Investor Shareholder Voting Matters at ~~SPAC~~ the Investor Shareholder Meeting, including as such ~~SPAC~~ Investor Shareholder Meeting may be adjourned or postponed in accordance with this Agreement, including by soliciting proxies as promptly as practicable in accordance with applicable Law for the purpose of seeking the approval of ~~SPAC~~ the Investor Shareholder Voting Matters. Except as otherwise required by applicable Law (including, for the avoidance of doubt, the fiduciary duties of the members of ~~SPAC~~ the Investor Board), ~~SPAC~~ the Investor Board ~~shall include the SPAC Board Recommendation in the Proxy/Registration Statement and any amended or supplemental statement sent to SPAC Shareholders and~~ shall not (and no committee or subgroup thereof shall) (i) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, ~~SPAC~~ the Investor Board Recommendation, (ii) adopt, approve, endorse or recommend any ~~SPAC~~ Investor Competing Transaction, (iii) following a request in writing by the ~~Parent~~ Company that ~~SPAC~~ the Investor Board Recommendation be reaffirmed publicly, fail to reaffirm publicly ~~SPAC~~ the Investor Board Recommendation within ten (10) days after the ~~Parent~~ Company made such request (it being agreed that the ~~Parent~~ Company may only make one (1) request ~~per calendar month~~ pursuant to this clause (iii); provided that ~~SPAC~~ the Investor (A) has not already publicly reaffirmed such ~~SPAC~~ Investor Board Recommendation or (B) has made a change in ~~SPAC~~ Investor Board Recommendation or is reasonably likely to do so in such ten (10) day period), or (iv) agree to take any of the foregoing actions. ~~SPAC~~ Investor agrees that its obligation to establish a record date for, duly call, give notice of, convene and hold ~~SPAC~~ the Investor Shareholder Meeting for the purpose of seeking approval of ~~SPAC~~ the Investor Shareholder Voting Matters shall not be affected by intervening events or circumstances, and ~~SPAC~~ Investor agrees to establish a record date for, duly call, give notice of, convene and hold ~~SPAC~~ the Investor Shareholder Meeting and submit for the approval of ~~SPAC~~ the Investor Shareholders ~~SPAC~~ the Investor Shareholder Voting Matters, in each case as contemplated by this Section ~~9.8(h~~8.9(h), regardless of whether or not there shall have occurred any intervening events or circumstances. Notwithstanding anything to the contrary contained in this Agreement, ~~SPAC~~ Investor only shall be entitled to postpone or adjourn ~~SPAC~~ the Investor Shareholder Meeting: (A) to allow reasonable additional time for the filing or mailing of any supplement or amendment to the ~~Proxy/Registration~~ Proxy Statement that ~~SPAC~~ the Investor Board has determined in good faith after consultation with outside legal counsel is required under applicable Law, which supplement or amendment shall be promptly disseminated to ~~SPAC~~Investor’s shareholders prior to ~~SPAC~~ the Investor Shareholder Meeting; (B) if, as of the time for which ~~SPAC~~ the Investor Shareholder Meeting is originally scheduled (as set forth in the ~~Proxy/Registration~~ Proxy Statement), there are insufficient shares of ~~SPAC~~ the Investor represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at ~~SPAC~~ the Investor Shareholder Meeting; (C) to seek withdrawals of redemption requests from ~~SPAC~~ Investor Shareholders; or (D) in order to solicit additional proxies from shareholders for purposes of obtaining approval of ~~SPAC~~ the Investor Shareholder Voting Matters; provided that in the event of any such postponement or adjournment, ~~SPAC~~ the Investor Shareholder Meeting shall be reconvened as promptly as practicable following such time, and in no event later than ten (10) Business Days following such time, as the matters described in such clauses have been resolved.

Appears in 1 contract

Samples: Business Combination Agreement (Helix Acquisition Corp)

Common use of Communications; Press Release; SEC Filings Clause in Contracts