Company Actions. (a) The Company hereby approves and consents to the Transactions and represents that the Company Board, at a meeting duly called and held, has unanimously: (i) determined that the Transactions are advisable, fair to and in the best interests of the stockholders of the Company; (ii) adopted and approved this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions; (iii) resolved to recommend that the Company’s stockholders accept the Offer and approve the Merger; and (iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Merger. (b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any supplements or amendments thereto, the “Schedule 14D-9”) containing, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the stockholders of the Company, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 or response, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein. (c) In connection with the Offer and the Merger, the Company shall instruct its transfer agent to furnish Parent and Merger Sub promptly with mailing labels containing the names and addresses of the record holders of Common Stock as of the latest practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to holders of Common Stock. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives shall use the information contained in any such labels, listings and files only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminated, will deliver to the Company all copies of such information then in their possession or under their control promptly upon the request of the Company.
Appears in 1 contract
Company Actions. (a) The Company hereby approves and consents to the Transactions Offer and represents that to the Company Board, at a meeting duly called and held, has unanimously:
(i) determined that the Transactions are advisable, fair to and inclusion in the best interests Offer Documents of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
(iii) resolved to recommend that the Company’s stockholders accept the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporationRecommendation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply subject to the execution, delivery or performance provisions of this Agreement or to the consummation of the Transactions, including the MergerSection 6.4.
(b) On As promptly as reasonably practicable following the commencement of the Offer and on the date of filing by Parent and Merger Sub of the Schedule TO that is part of the Offer Documents are filed with the SECDocuments, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer 14D‑9 (such Schedule 14D-914D‑9, together with any all exhibits, amendments and supplements or amendments thereto, the “Schedule 14D-914D‑9”), which shall reflect that the Merger is governed by Section 251(h) containingof the DGCL and shall contain the Recommendation, subject to the provisions of Section 7.3(c)6.4. Without limitation, the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 shall include as an exhibit an Information Statement pursuant to Section 14(f) of the Exchange Act and Rule 14f-l promulgated thereunder and shall include the notice of availability of appraisal rights that Section 262(d)(2) of the DGCL requires the Company to deliver to the Company’s stockholders in connection with the Merger. The Company shall cause the Schedule 14D‑9 to be disseminated to the holders of the Company Shares, as and to the extent required by Rule 14d-9 under the Exchange Actapplicable federal securities Law. Each of the Company, Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Sub agrees promptly to permit the Company to include correct any information provided by it for use in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference in the Schedule 14D-9 14D‑9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 14D‑9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders holders of the CompanyShares, in each case as soon as reasonably practicable and case, as and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger ▇▇▇▇▇▇ Sub and their counsel shall be given a reasonable opportunity to review and comment on such the Schedule 14D-9 or response, 14D‑9 and any amendments thereto prior to the filing thereof with the SEC and the Company shall give reasonable and good faith due consideration to any such commentsall reasonable additions, deletions or changes suggested thereto by Parent, ▇▇▇▇▇▇ Sub and their counsel. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of In addition, the Company Board contained in the Schedule 14D-9. In the event agrees to provide ▇▇▇▇▇▇, ▇▇▇▇▇▇ Sub and their counsel any comments, whether written or oral, that the Company receives any comments or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-914D‑9 promptly after the receipt of such comments, it and any written or oral responses thereto. Parent, ▇▇▇▇▇▇ Sub and their counsel shall use its be given a reasonable best efforts opportunity to (i) respond promptly review and comment upon such responses and the Company shall give due consideration to such comments all reasonable additions, deletions or changes suggested thereto by ▇▇▇▇▇▇, ▇▇▇▇▇▇ Sub and (ii) take all other actions necessary to resolve the issues raised thereintheir counsel.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct cause its transfer agent to promptly (and in any event within five (5) Business Days of the date of this Agreement) furnish Parent and Merger Sub promptly with mailing labels labels, security position listings, any non-objecting beneficial owner lists and any available listings or computer files containing the names and addresses of the record holders of Common Stock Shares as of the latest most recent practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub with such additional available information (including, but not limited to, periodic updates of such information) and such other assistance (including periodically updated lists of stockholdersas Parent, security position listings and computer files) as Parent Merger Sub or their agents may reasonably request in communicating the Offer to the record and beneficial holders of Common StockShares. Except Subject to the requirements of applicable Laws, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the MergerOffer, Parent, Parent and Merger Sub and their respective affiliates, associates and Representatives shall use hold in confidence the information contained in any such labels, listings and files files, shall use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, Merger and, if this Agreement shall be terminated, will shall promptly deliver (and shall cause their agents and Representatives to deliver) to the Company all copies and any extract or summaries of such information then in their possession or under their control promptly upon the request of the Companyinformation.
Appears in 1 contract
Company Actions. (a) The Company hereby approves of and consents to the Transactions Offer and represents and warrants that the Company BoardBoard of Directors, at a meeting duly called and heldheld on August 19, has unanimously:
1997 at which a majority of the Directors was present, by unanimous action of the Board of Directors: (i) duly approved this Agreement, the Stockholder Agreement and the transactions contemplated hereby and thereby, including the Offer, the Merger, the JNL Option and the purchase of Shares by the Purchaser or its designee pursuant to the exercise of the JNL Option (collectively, the "Transactions"), (ii) resolved to recommend that the ------------ stockholders of the Company accept the Offer, tender their Shares pursuant to the Offer and approve this Agreement and the transactions contemplated hereby, including the Merger; and (iii) determined that this Agreement and the Transactions transactions contemplated hereby, including the Offer and the Merger, are advisable, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
(iii) resolved to recommend that the Company’s stockholders accept the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Merger.
(b) On As soon as practicable on the date the Offer Documents are filed with the SECis commenced, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any and all amendments or supplements or amendments thereto and including the exhibits thereto, the “"Schedule 14D-9”) containing, subject to Section 7.3(c"), the recommendation described in Section 2.3(a)(iii) and shall disseminate the . The Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to will -------------- comply in all material respects with the provisions of applicable Law. The Company shall also include in federal securities laws and, on the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when date filed with the SEC and on the date first published, sent mailed or given to the stockholders of the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; providedmisleading, however, except that no such obligation representation is undertaken made by the Company with respect to information supplied furnished by Parent or Merger Sub or any of their officersthe Purchaser, directorsin writing, representatives, agents or employees in writing specifically expressly for inclusion or incorporation by reference in the Schedule 14D-9. The Company further agrees to take all steps necessary to cause the Schedule 14D-9 to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company shall mail, or cause to be mailed, such Schedule 14D-9 to the stockholders of the Company at the same time the Offer Documents are first mailed to the stockholders of the Company together with such Offer Documents. The Schedule 14D-9 and the Offer Documents shall contain the recommendations of the Board of Directors described in Section 1.2(a) hereof, subject to the terms of this Agreement. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and each of Parent and Merger Sub hereby agree that the Purchaser, with respect to written information supplied by it specifically for use in the Schedule 14D-9, shall promptly notify the Company of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference contained in the Schedule 14D-9 to include any information that shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respectmisleading. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference in the Schedule 14D-9 if and The Company further agrees to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders holders of the CompanyShares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company Purchaser and its Representatives, on counsel shall be given the one hand, and the SEC, on the other hand. Prior opportunity to the filing of review the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation before it is filed with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9SEC. In addition, the Company shall agrees to provide Parentthe Purchaser and its counsel, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 in writing, with any comments, whether written or responseoral, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and (ii) take all or other actions necessary to resolve the issues raised thereincommunications.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent will promptly furnish or cause to furnish Parent and Merger Sub promptly with be furnished to the Purchaser mailing labels containing the names and addresses of the all record holders of Common Stock as of the latest practicable date Shares and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information of Shares held in the Company’s possession or control regarding the beneficial owners of Common Stockstock depositories, in each case as of the latest date practicablea recent date, and shall promptly furnish to Parent the Purchaser with such additional information (including, but not limited to, updated lists of stockholders and Merger Sub their addresses, mailing labels and security position listing) and such other information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent the Purchaser or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Common Stock. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives shall use the information contained in any such labels, listings and files only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminated, will deliver to the Company all copies of such information then in their possession or under their control promptly upon the request of the CompanyShares.
Appears in 1 contract
Company Actions. (a) The Company hereby approves of and consents to the Transactions Offer and represents that the Company BoardBoard of Directors, at a meeting duly called and held, has unanimously:
has, subject to the terms and conditions set forth herein, (i) determined that the Transactions are advisable, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions transactions contemplated hereby, including the Offer and declared it advisable that the Company enter into Merger (as defined in Section 1.4) (collectively, the "Transactions"), and such approvals constitute approval of the Offer, this Agreement and consummate the Transactions;
Merger for purposes of Sections 902 and 912 of the New York Business Corporation Law (iiithe "NYBCL") and similar provisions of any other similar state statutes that might be deemed applicable to the transactions contemplated hereby, (ii) resolved to recommend that the Company’s stockholders shareholders of the Company accept the Offer Offer, tender their Shares thereunder to the Purchaser and approve and adopt this Agreement and the MergerMerger and the Company hereby consents to the inclusion in the Offer Documents of such recommendation; and
provided, that such recommendation may be withdrawn, modified or amended if, in the good faith opinion of the Board of Directors, after consultation with independent legal counsel, such recommendation would be inconsistent with its fiduciary duties to the Company's shareholders under applicable law and (iviii) approved taking all actions so that the restrictions contained in redemption of the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or Rights prior to the consummation of the TransactionsOffer according to the provisions of the Rights Agreement. The Company represents that the actions set forth in this Section 1.2(a) and all other actions it has taken in connection therewith are, including assuming the accuracy of, and in reliance upon, the information received in writing from Parent as to the ownership of Shares by Parent and their affiliates, sufficient to render the relevant provisions of Section 912 of the NYBCL inapplicable to the Offer and the Merger.
. The Company further represents that ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("Goldman") has delivered to the Board of Directors of the Company the Fairness Opinion as described in Section 3.18. (b) On the date the Offer Documents are filed Concurrently with the SECcommencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto and including the exhibits thereto, the “"Schedule 14D-9”") containingwhich shall, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders fiduciary duties of the Company as Company's directors under applicable law and to the extent required by Rule 14d-9 under provisions of this Agreement, contain the Exchange Act. Each recommendation referred to in clause (ii) of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9Section 1.2(a) hereof. The Company shall cause the Schedule 14D-9 to will comply in all material respects with the provisions of applicable Law. The Company shall also include in federal securities laws and, on the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when date filed with the SEC and on the date first published, sent or given to the stockholders of the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; providedmisleading, however, except that no such obligation representation is undertaken made by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees the Purchaser in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9Offer Documents. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in The Company further agrees to take all steps necessary to cause the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order filed with the SEC and to make the statements thereinbe disseminated to holders of Shares, in light of each case as and to the circumstances under which they were made, not misleading in any material respectextent required by applicable federal securities laws. Each of the Company, Parenton the one hand, and Merger Sub shall Parent and the Purchaser, on the other hand, agrees promptly to correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or and misleading in any material respect, respect and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders holders of the CompanyShares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company Parent and its counsel shall promptly notify Parent upon be given the receipt of any comments from opportunity to review the initial Schedule 14D-9 before it is filed with the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9In addition, the Company shall agrees to provide Parent, Merger Sub the Purchaser and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 in writing with any comments or response, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event other communications that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and or other communications. Notwithstanding anything to the contrary contained herein, if the members of the Board of Directors of the Company determine in the exercise of their fiduciary duties to withdraw, modify or amend the recommendation referred to in clause (ii) take all other actions necessary to resolve the issues raised thereinof Section 1.2(a) hereof, such withdrawal, modification or amendment shall not constitute a breach of this Agreement.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent will promptly furnish or cause to furnish Parent be furnished to the Purchaser mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing or computer file containing the names and addresses of the record holders of Common Stock the Shares as of the latest practicable date and of those persons becoming record holders subsequent to such a recent date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub the Purchaser with such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent the Purchaser or its agents may reasonably request in communicating the Offer to holders the shareholders of Common Stockthe Company. Except for such steps as are necessary to disseminate the Offer Documents Documents, Parent and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives Purchaser shall use hold in confidence the information contained in any of such labelslabels and lists and the additional information referred to in the preceding sentence, listings and files will use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure AgreementOffer, and, if this Agreement shall be is terminated, will upon request of the Company deliver or cause to be delivered to the Company all copies of such information then in their its possession or under their control promptly upon the request possession of its agents or representatives.
(d) The Company shall amend the Rights Agreement as set forth in Annex B hereto, which amendment will be effective as of the Companydate hereof.
Appears in 1 contract
Sources: Merger Agreement (Handy & Harman)
Company Actions. (a) The Company hereby approves of and consents to the Transactions Offer and represents that the Company BoardBoard of Directors of the Company, at a meeting duly called and held, has unanimously:
(i) determined duly and unanimously adopted resolutions approving this Agreement and the Stockholder Agreement, the Offer and the Merger, determining that the Transactions terms of the Offer and the Merger are advisablefair to, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions and declared it advisable that of, the Company enter into this Agreement and consummate the Transactions;
(iii) resolved to recommend its stockholders and recommending that the Company’s 's stockholders accept the Offer, tender their Shares and the associated Rights pursuant to the Offer and approve and adopt the Merger; and
Merger and this Agreement (ivif required). The Company represents that its Board of Directors has received the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("▇▇▇▇▇ ▇▇▇▇▇▇") approved taking all actions so that dated the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance date of this Agreement or to the consummation effect that, as of such date and based upon and subject to the Transactionsmatters set forth therein, including the Mergercash consideration to be received by the holders of Shares (other than Parent and its Affiliates) pursuant to the Offer and the Merger is fair ---------- from a financial point of view to such holders, and a complete and correct signed copy of such opinion will be delivered by the Company to Parent after receipt thereof by the Company. The Company has been authorized by ▇▇▇▇▇ ▇▇▇▇▇▇ to permit the inclusion of such opinion (or a reference thereto) in the Schedule 14D-1, the Schedule 14D-9 (as hereinafter defined) and the Proxy Statement (as hereinafter defined).
(b) On the date the Offer Documents are filed with the SEC, or promptly thereafter, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any supplements or amendments theretoas amended from time to time, the “"Schedule 14D-9”") containing, subject to Section 7.3(c), -------------- containing the recommendation described in Section 2.3(a)(iiiparagraph (a) and shall disseminate mail the Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 shall comply as to comply form in all material respects with the provisions requirements of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to and the inclusion in rules and regulations promulgated thereunder and, on the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when date filed with the SEC and on the date first published, sent or given to the stockholders of the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; providedmisleading, however, except that no such obligation representation or warranty is undertaken made by the Company with respect to written information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically Parent or Sub for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect14D-9. Each of the Company, Parent, Parent and Merger Sub shall agrees promptly to correct any written information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the stockholders of the Company's stockholders, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal Federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company counsel shall provide Parent, Merger Sub and their counsel a be given reasonable opportunity to review and comment on such upon the Schedule 14D-9 prior to its filing with the SEC or response, and dissemination to stockholders of the Company shall give reasonable and good faith consideration to any such commentsCompany. The Company hereby consents agrees to the inclusion in the Offer Documents of the recommendation of provide Parent and its counsel any comments the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and (ii) take all other actions necessary to resolve the issues raised thereincomments.
(c) In connection with the Offer and the Merger, the Company shall instruct cause its transfer agent to furnish Parent and Merger Sub promptly with mailing labels containing the names and addresses of the record holders of Common Stock Shares as of the latest practicable a recent date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s 's possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicableShares, and shall furnish to Parent and Merger Sub such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to holders the Company's stockholders. Subject to the requirements of Common Stock. Except applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Parent and Sub and their respective affiliates, associates and Representatives agents shall use hold in confidence the information contained in any such labels, listings and files files, will use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, Merger and, if this Agreement shall be terminated, will, upon request, promptly deliver, and will deliver use their best efforts to cause their agents promptly to deliver, to the Company all copies of such information then in their possession or under their control promptly upon the request control.
(d) Immediately after consummation of the Offer, each outstanding Warrant (as defined in Section 7.4) to purchase Common Stock of the Company issued under the Company's 1995 Directors Warrant Plan held by a director of the Company (a "Director Warrant"), shall be purchased by Sub for an amount in cash, ---------------- payable at the time of such purchase, equal to the product of (x) the number of shares subject to such Director Warrant and (y) the excess of the price paid in the Offer over the per share exercise price of such Director Warrant.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Three Rivers Acquisition Corp)
Company Actions. (a) The Company hereby approves of and consents to the Transactions Offer and represents and warrants that the Company BoardBoard of Directors, at a meeting duly called and heldheld on August 19, has unanimously:
1997 at which a majority of the Directors was present, by unanimous action of the Board of Directors: (i) duly approved this Agreement, the Stockholder Agreement and the transactions contemplated hereby and thereby, including the Offer, the Merger, the JNL Option and the purchase of Shares by the Purchaser or its designee pursuant to the exercise of the JNL Option (collectively, the "Transactions"), (ii) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares pursuant to the Offer and approve this Agreement and the transactions contemplated hereby, including the Merger; and (iii) determined that this Agreement and the Transactions transactions contemplated hereby, including the Offer and the Merger, are advisable, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
(iii) resolved to recommend that the Company’s stockholders accept the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Merger.
(b) On As soon as practicable on the date the Offer Documents are filed with the SECis commenced, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any and all amendments or supplements or amendments thereto and including the exhibits thereto, the “"Schedule 14D-9”) containing, subject to Section 7.3(c"), the recommendation described in Section 2.3(a)(iii) and shall disseminate the . The Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to will comply in all material respects with the provisions of applicable Law. The Company shall also include in federal securities laws and, on the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when date filed with the SEC and on the date first published, sent mailed or given to the stockholders of the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; providedmisleading, however, except that no such obligation representation is undertaken made by the Company with respect to information supplied furnished by Parent or Merger Sub or any of their officersthe Purchaser, directorsin writing, representatives, agents or employees in writing specifically expressly for inclusion or incorporation by reference in the Schedule 14D-9. The Company further agrees to take all steps necessary to cause the Schedule 14D-9 to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company shall mail, or cause to be mailed, such Schedule 14D-9 to the stockholders of the Company at the same time the Offer Documents are first mailed to the stockholders of the Company together with such Offer Documents. The Schedule 14D-9 and the Offer Documents shall contain the recommendations of the Board of Directors described in Section 1.2(a) hereof, subject to the terms of this Agreement. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect (and each of Parent and Merger Sub hereby agree that the Purchaser, with respect to written information supplied by it specifically for use in the Schedule 14D-9, shall promptly notify the Company of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference contained in the Schedule 14D-9 to include any information that shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respectmisleading. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference in the Schedule 14D-9 if and The Company further agrees to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders holders of the CompanyShares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company Purchaser and its Representatives, on counsel shall be given the one hand, and the SEC, on the other hand. Prior opportunity to the filing of review the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation before it is filed with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9SEC. In addition, the Company shall agrees to provide Parentthe Purchaser and its counsel, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 in writing, with any comments, whether written or responseoral, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and (ii) take all or other actions necessary to resolve the issues raised thereincommunications.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent will promptly furnish or cause to furnish Parent and Merger Sub promptly with be furnished to the Purchaser mailing labels containing the names and addresses of the all record holders of Common Stock as of the latest practicable date Shares and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information of Shares held in the Company’s possession or control regarding the beneficial owners of Common Stockstock depositories, in each case as of the latest date practicablea recent date, and shall promptly furnish to Parent the Purchaser with such additional information (including, but not limited to, updated lists of stockholders and Merger Sub their addresses, mailing labels and security position listing) and such other information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent the Purchaser or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Common Stock. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives shall use the information contained in any such labels, listings and files only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminated, will deliver to the Company all copies of such information then in their possession or under their control promptly upon the request of the CompanyShares.
Appears in 1 contract
Company Actions. (a) The Company hereby approves of and consents to the Transactions Offer and represents that the Company BoardBoard of Directors, at a meeting duly called and held, has unanimously:
has, sub ject to the terms and conditions set forth herein, (i) determined that the Transactions are advisable, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions transactions contemplated hereby, including the Offer and declared it advisable the Merger (as defined in Section 1.4) (collectively, the "Transactions"), and such approvals constitute approval of the Offer, this Agree ment and the Merger for purposes of Sections 902 and 912 of the New York Business Corporation Law (the "NYBCL") and similar provisions of any other similar state stat utes that might be deemed applicable to the Company enter into this Agreement and consummate the Transactions;
transactions contemplated hereby, (iiiii) resolved to recommend that the Company’s stockholders accept the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Merger.
(b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any supplements or amendments thereto, the “Schedule 14D-9”) containing, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders shareholders of the Company as and accept the Offer, tender their Shares thereunder to the extent required by Rule 14d-9 under Purchaser and approve and adopt this Agreement and the Exchange Act. Each of Parent Merger and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description such recommendation; PROVIDED, THAT such recommenda tion may be withdrawn, modified or amended if, in the good faith opinion of the Board of Directors, after consultation with independent legal counsel, such recom mendation would be inconsistent with its fiduciary duties to the Company's shareholders under applicable law and (iii) approved the redemption of the Rights prior to the consummation of the Offer according to the provisions of the Rights Agreement. The Company represents that the actions set forth in this Section 1.2(a) and all other actions it has taken in connection therewith are, assum ing the accuracy of, and in reliance upon, the informa tion received in writing from Parent as to the ownership of Shares by Parent and their affiliates, sufficient to render the relevant provisions of Section 912 of the NYBCL inapplicable to the Offer and the Merger. The Company further represents that ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("Goldman") has delivered to the Board of Directors of the Company Recommendationthe Fairness Opinion as described in Section 3.18.
(b) Concurrently with the commencement of the Offer, the Company shall file with the SEC a Solici tation/Recommendation Statement on Schedule 14D-9 (to gether with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-9") which shall, subject to the fiduciary duties of the Company's directors under applicable law and to the provisions of this Agreement, contain the recommendation referred to in clause (ii) of Section 1.2(a) hereof. The Company hereby further agrees that Schedule 14D-9 will comply in all material respects with the Schedule 14D-9provisions of applicable federal securities laws and, when on the date filed with the SEC and on the date first published, sent or given to the stockholders of the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; providedmisleading, however, except that no such obligation representation is undertaken made by the Company with respect to information supplied sup plied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees the Purchaser in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9Offer Documents. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in The Company further agrees to take all steps necessary to cause the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order filed with the SEC and to make the statements thereinbe disseminated to holders of Shares, in light of each case as and to the circumstances under which they were made, not misleading in any material respectextent required by applicable federal securities laws. Each of the Company, Parenton the one hand, and Merger Sub shall Parent and the Purchaser, on the other hand, agrees promptly to correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or and misleading in any material respect, respect and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and disseminated to the stockholders be dissemi nated to holders of the CompanyShares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company Parent and its counsel shall promptly notify Parent upon be given the receipt of any comments from opportu nity to review the initial Schedule 14D-9 before it is filed with the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9In addition, the Company shall agrees to provide Parent, Merger Sub the Purchaser and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 in writ ing with any comments or response, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event other communications that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and or other communications. Notwithstanding anything to the contrary contained herein, if the members of the Board of Direc tors of the Company determine in the exercise of their fiduciary duties to withdraw, modify or amend the recom mendation referred to in clause (ii) take all other actions necessary to resolve the issues raised thereinof Section 1.2(a) hereof, such withdrawal, modification or amendment shall not constitute a breach of this Agreement.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent will promptly furnish or cause to furnish Parent be furnished to the Purchaser mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing or computer file containing the names and addresses of the record holders of Common Stock the Shares as of the latest practicable date and of those persons becoming record holders subsequent to such a recent date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub the Purchaser with such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent the Purchaser or its agents may reasonably request in communicating the Offer to holders the shareholders of Common Stockthe Company. Except for such steps as are necessary to disseminate the Offer Documents Docu ments, Parent and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives Purchaser shall use hold in confidence the information contained in any of such labelslabels and lists and the additional information referred to in the preced ing sentence, listings and files will use such information only in connection connec tion with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure AgreementOffer, and, if this Agreement shall be terminatedis terminat ed, will upon request of the Company deliver or cause to be delivered to the Company all copies of such information informa tion then in their its possession or under their control promptly upon the request possession of its agents or representatives.
(d) The Company shall amend the Rights Agreement as set forth in Annex B hereto, which amendment will be effective as of the Companydate hereof.
Appears in 1 contract
Sources: Merger Agreement (WHX Corp)
Company Actions. (a) The Company hereby approves and consents to the Transactions Offer and represents that the Company Board, at a meeting duly called and held, has unanimously:
unanimously (i) determined that this Agreement and the Transactions transactions contemplated hereby, including the Offer and the Merger, are advisable, advisable and are fair to and in the best interests interest of the stockholders of the Company;
Stockholders, (ii) adopted and approved this Agreement and the Transactions transactions contemplated hereby, including the Offer and declared it advisable the Merger, (iii) taken all steps, or will take all steps, at the proper time in connection with this Agreement, the transactions contemplated hereby, the Offer and the Merger, necessary to comply with any applicable state takeover law, including to ensure that the Company enter into Offer and the Merger, and the transactions contemplated hereby, do not constitute a "takeover bid" under the New Jersey Shareholders Protection Act (NJSA 14A:10A-1 et seq.) and the New Jersey Corporation Takeover Bid Disclosure Law (NJSA 49:5-1 et seq.) (collectively, the "New Jersey Takeover Acts"), including, without limitation, taking the steps contemplated by the proviso in Section 4.28 hereof, (iv) taken all steps necessary to exempt the Offer (and any Subsequent Offer), the Merger and this Agreement from the Rights Agreement (as defined in Section 4.5), and consummate the Transactions;
(iiiv) resolved to recommend that the Company’s stockholders accept acceptance of the Offer (and approve any Subsequent Offer) and approval and adoption of this Agreement and the Merger; and
Merger by the Stockholders (the recommendations referred to in this clause (iv) approved taking all actions so that the restrictions contained are collectively referred to in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to as the consummation of the Transactions, including the Merger"Company Recommendations").
(b) On As soon as practicable on the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all A-4 5 amendments and supplements or amendments thereto and including the exhibits thereto, the “"Schedule 14D-9”") containingcontaining the Company Recommendations, subject to the provisions of Section 7.3(c)7.1. At the time the Offer Documents are first mailed to the Stockholders, the recommendation described in Section 2.3(a)(iii) and Company shall disseminate mail or cause to be mailed to the Stockholders such Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9together with such Offer Documents. The Company further agrees that it shall cause the Schedule 14D-9 to comply in all material respects with the provisions of Exchange Act, and the rules and regulations thereunder, and other applicable Lawlaws. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit take all steps reasonably necessary to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in cause the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order disseminated to make the statements thereinholders of Shares, in light of each case as and to the circumstances under which they were made, not misleading in any material respectextent required by applicable federal securities laws. Each of the Company, Parenton the one hand, and Sysco and Merger Sub shall Sub, on the other hand, agrees promptly to correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or and misleading in any material respect, respect and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders holders of the CompanyShares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company Sysco and its Representatives, on the one hand, and the SEC, on the other hand. Prior counsel shall be given a reasonable opportunity to the filing of review the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation before it is filed with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9SEC. In addition, the Company shall agrees to provide ParentSysco, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 in writing with any comments, whether written or responseoral, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and (ii) take all or other actions necessary to resolve the issues raised thereincommunications.
(c) In connection with the Offer (and any Subsequent Offer) and the Merger, the Company shall instruct its transfer agent promptly furnish or cause to furnish Parent and be furnished to Merger Sub promptly with mailing labels labels, security position listings and any available listing or computer file containing the names and addresses of the record holders of Common Stock the Shares as of the latest practicable date and of those persons becoming record holders subsequent to such a recent date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub with such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent Merger Sub or its agents may reasonably request in communicating the Offer (and any Subsequent Offer) to holders of Common Stockthe Stockholders. Except for such steps as are necessary to disseminate the Offer Documents Documents, Sysco and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives shall use hold in confidence the information contained in any of such labelslabels and lists and the additional information referred to in the preceding sentence, listings and files will use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be is terminated, will upon request of the Company deliver or cause to be delivered to the Company all copies of such information then in their its possession or under their control promptly upon the request possession of the Companyits agents or representatives.
Appears in 1 contract
Sources: Merger Agreement (Sysco Corp)
Company Actions. (a) The Company hereby approves of and consents to the Transactions Offer and represents and warrants that the Company Independent Committee has determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable and in the best interests of the Stockholders, and the Board, at a meeting duly called and heldheld and acting on the unanimous recommendation of the Independent Committee, has unanimously:
(i) determined that duly approved the Transactions are advisable, fair to and in the best interests adoption of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions transactions contemplated hereby, including the Offer and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
Merger, (iiiii) resolved to recommend that the Company’s stockholders Stockholders accept the Offer Offer, tender their Shares thereunder and approve this Agreement and the Merger; and
(iv) approved taking all actions so provided, however, that such recommendation may be withdrawn or modified in accordance with the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance provisions of this Agreement or and (iii) approved the transfer of the Convertible Note from Health Partners to Purchaser; provided, however, that such approval is conditioned upon Purchaser actually purchasing Shares pursuant to the consummation of the Transactions, including the MergerOffer.
(b) On the date the Offer Documents are filed Concurrently with the SECcommencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto and including the exhibits thereto, the “"Schedule 14D-9”") containingwhich shall, subject to Section 7.3(c)the provisions of this Agreement, contain the recommendation described referred to in clause (ii) of Section 2.3(a)(iii1.2(a) and shall disseminate the hereof. The Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to will comply in all material respects with the provisions of applicable Lawfederal securities laws. The Company shall also include in further agrees to take all steps necessary to cause the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., 14D-9 to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when be filed with the SEC and on the date first publishedto be disseminated to holders of Shares, sent or given in each case as and to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact extent required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respectapplicable federal securities laws. Each of the Company, Parenton the one hand, and Merger Sub shall Parent and Purchaser, on the other hand, agrees promptly to correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or and misleading in any material respect, respect and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders holders of the CompanyShares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company Purchaser and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company outside counsel shall provide Parent, Merger Sub and their counsel be given a reasonable opportunity to review and comment on such the initial Schedule 14D-9 or response(and any amendment thereto) before it is filed with the SEC. In addition, and the Company shall give reasonable agrees to provide Parent, Purchaser and good faith consideration to their outside counsel in writing with any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event comments or other communications, whether written or oral, that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and (ii) take all or other actions necessary to resolve the issues raised thereincommunications.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent will promptly furnish or cause to furnish Parent be furnished to Purchaser mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing or computer file containing the names and addresses of the record holders of Common Stock the Shares as of the latest practicable date and of those persons becoming record holders subsequent to such a recent date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub Purchaser with such additional information and assistance (including periodically updated lists of stockholdersholders of Shares and their addresses, mailing labels and lists of security position listings positions) and computer files) such other assistance as Parent Purchaser or its agents may reasonably request in communicating the Offer to holders the record and beneficial stockholders of Common Stockthe Company. Except for such steps as are necessary to disseminate the Offer Documents Documents, Parent and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives Purchaser shall use hold in confidence the information contained in any of such labelslabels and lists and the additional information referred to in the preceding sentence, listings and files will use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure AgreementOffer, and, if this Agreement shall be is terminated, will promptly upon request of the Company destroy or cause to be destroyed (or deliver or cause to be delivered to the Company, if the Company so requests) all copies of such information then in their its possession or under their control promptly upon the request possession of the Companyits agents or representatives.
Appears in 1 contract
Sources: Merger Agreement (Brookdale Living Communities Inc)
Company Actions. The Company hereby consents to the Offer and the Merger and represents and warrants that:
(a) The Company Special Committee has considered the Offer, the Merger and the transactions contemplated hereby approves and consents to the Transactions and represents that the Company Board, at a meeting duly called and held, has unanimously:
(i) unanimously determined that the Transactions Offer and the Merger are advisable, fair to and in the best interests of the stockholders Company and the holders of Shares and has determined that the Offer and Merger are advisable, and has unanimously recommended that the Board of Directors of the Company;
(ii) adopted and approved Company approve the Offer, the Merger, this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
(iii) resolved to recommend that the Company’s stockholders accept the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Mergertransactions contemplated hereby.
(b) On the date Its Board of Directors (at a meeting duly called and held) by unanimous vote has (i) determined that each of the Offer Documents and the Merger is fair to, and in the best interests of, the Company and the holders of Shares, (ii) declared that the Offer and the Merger are filed advisable, (iii) approved the Offer, the Merger, the Stockholders Agreements, the Option Agreement and this Agreement in accordance with the SECprovisions of the MGCL, (iv) recommended acceptance of the Offer and approval of the Merger, this Agreement and the transactions contemplated hereby by the stockholders of the Company, and (v) taken all other action necessary to render (and has refrained from taking any action which would not render) inapplicable to the Offer, the Merger, the Stockholders Agreements and this Agreement and to the transactions contemplated hereby and thereby, (x) Subtitles 6 and 7 of Title 3 of the MGCL, (y) Section 6.7 of the Company's charter (the "CHARTER") and (z) the Rights Agreement and the Rights.
(c) The Company shall file with the SEC Commission, as soon as practicable on the date of the commencement of the Offer, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto, the “Schedule 14D-9”) containing, subject to Section 7.3(c"SCHEDULE L4D-9"), containing the recommendation described recommendations referred to in clause (a)(iv) of this Section 2.3(a)(iii) 2.2, and shall disseminate the Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub and their counsel shall promptly furnish be given reasonable opportunity to the Company or the Company’s legal counsel in writing review and comment upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9l4D-9 prior to its filing with the Commission. The Company shall cause the Schedule 14D-9 to (i) shall comply in all material respects with the provisions of applicable Law. The Company shall also include in federal securities laws and (ii) on the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when date filed with the SEC Commission and on the date first published, sent or given to the stockholders holders of the Company, Shares shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading in light of the circumstances under which they were are made, not misleading in any material respect; provided, however, except that no such obligation representation is undertaken made by the Company with respect -10- to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically expressly for inclusion or incorporation by reference in the Schedule 14D-9. The Company, on the one hand, and each of Parent and Merger Sub hereby agree that Sub, on the other hand, agrees promptly to correct any information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information the Schedule 14D-9 shall be, or shall have become become, false or misleading in any material respect, respect and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 14D-9, as so amended or supplemented corrected, to be filed with the SEC Commission and to be disseminated to the stockholders holders of the CompanyShares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, agrees to the Schedule 14D-9, and shall promptly provide Parent and its counsel with information with respect to any oral comments and with copies of all correspondence and summaries of all material oral communications between any written comments the Company and or its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 or response, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments may receive from the SEC Commission or its staff with respect to the Schedule 14D-9, it 14D-9 promptly after the receipt of such comments. The Company shall use its commercially reasonable best efforts to (i) respond promptly to such comments promptly and (ii) take all other actions necessary shall provide Parent and its counsel an opportunity to resolve participate in the issues raised thereinresponse of the Company to such comments, including by participating with the Company and its counsel in any discussions with the Commission or its staff.
(cd) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent to promptly furnish Parent and Merger Sub promptly with mailing labels containing labels, security position listings and any available listing or computer list containing, as of the most recent practicable date, the names and addresses of the record holders of Common Stock as of the latest practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, Shares and shall furnish to Parent and Merger Sub with such additional information and assistance (including periodically including, but not limited to, updated lists of stockholdersholders of Shares and their addresses, mailing labels and lists of security position listings positions) and computer files) such other assistance as Parent Sub or its agents may reasonably request in for the purpose of communicating the Offer to the holders of Common StockShares. Except Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates its Affiliates and Representatives agents and advisors shall use hold in confidence the information contained in any such labels, listings and files files, shall use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, Merger and, if this Agreement shall be is terminated, will shall deliver to the Company all copies of such information then in their possession its possession.
(e) The Company represents and warrants that it has been advised that each of its directors and executive officers intends to tender pursuant to the Offer all Shares owned of record and beneficially by him or under their control promptly upon her except to the request of the Companyextent such tender would violate applicable securities laws.
Appears in 1 contract
Company Actions. (a) The Company hereby approves of and --------------- consents to the Transactions Offer and represents that the Company BoardBoard of Directors of the Company, at a meeting duly called and held, has unanimously:
(i) determined as of the date hereof that this Agreement and the Transactions Offer and the Merger are advisable, fair to and in the best interests of the stockholders of the Company;
's shareholders, (ii) approved and adopted this Agreement, the Support Agreement and approved the transactions contemplated hereby and thereby (including the Offer and Merger), (iii) has taken all other actions necessary to render Article 14 (Affiliated Transactions) and Article 14.1 (Control Share Acquisitions) of the VSCA not applicable to the transactions contemplated by this Agreement and the Transactions Support Agreement, including the Merger and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
(iii) resolved to recommend that the Company’s stockholders accept the Offer and approve any exercise of the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” option set forth in the Delaware Takeover Statute Support Agreement, and (iv) recommended acceptance of the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance Offer and approval and adoption of this Agreement or to and the consummation of the Transactions, including the Merger.
(b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any supplements or amendments thereto, the “Schedule 14D-9”) containing, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders of the Company as and to the extent required Merger by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect's shareholders; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent recommendation and approval -------- ------- may be withdrawn, modified or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference in the Schedule 14D-9 if and amended to the extent that such information shall have become false or misleading in any material respect, and the Board of Directors of the Company shall take all steps necessary determines in good faith, after having received the advice of outside counsel, that it is required to amend or supplement the Schedule 14D-9 and do so in order to cause the Schedule 14D-9 as so amended or supplemented to be filed comply with the SEC and disseminated its fiduciary obligations. Subject to the stockholders foregoing provisions of the Company, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9this Section 2.02(a), the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 or response, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors of the Company Board contained described in the first sentence of this Section 2.02(a) and represents that it has obtained all necessary consents to permit the inclusion in its entirety of the fairness opinion of Credit Suisse First Boston Corporation ("CSFB") in the Schedule 14D-9. In the event that 14D-9 ---- and, if necessary, the Company receives Proxy Statement (as defined in Section 4.09). The Company has been advised that each of its directors and executive officers intends to tender pursuant to the Offer all Shares owned of record and beneficially by such director and executive officer.
(b) The Company shall file or cause to be filed with the SEC on the date of commencement of the Offer a Solicitation/Recommendation Statement on Schedule 14D-9 (as amended and supplemented from time to time, the "Schedule 14D-9") that -------------- shall reflect the recommendation of the Company's Board of Directors referred to above, and shall disseminate the Schedule 14D-9 to shareholders of the Company as required by Rule 14d-9 promulgated under the Exchange Act. To the extent practicable, the Company shall cooperate with Parent and Merger Subsidiary in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate Offer Documents to the Company's shareholders. The Schedule 14D-9 shall comply in all material respects with the provisions of applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before the filing thereof with the SEC. The Company agrees to provide Parent and its counsel any comments or communications, written or oral, which the Company or its counsel may receive from the staff of the SEC or its staff with respect to the Schedule 14D-9 promptly upon receipt thereof. Each of the Company, on the one hand, and Parent and Merger Subsidiary, on the other hand, shall promptly correct any information provided by either of them for use in the Schedule 14D-9, if and to the extent that it shall use its reasonable best efforts to (i) respond promptly to such comments become false or misleading, and (ii) the Company shall take all other actions steps necessary to resolve cause the issues raised thereinSchedule 14D-9 as so corrected to be filed with the SEC and disseminated to the shareholders of the Company as and to the extent required by applicable laws.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent promptly furnish Parent, or cause Parent to furnish Parent be furnished, with, mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing or computer file containing the names and addresses of the record holders of Common Stock the Shares as of the latest practicable date a recent date, and of those persons becoming record holders subsequent to after such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub with such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent or its agents may reasonably request in communicating the Offer to holders of Common Stock. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives shall use the information contained in any such labels, listings and files only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminated, will deliver to the Company all copies of such information then in their possession or under their control promptly upon the request shareholders of the Company.
Appears in 1 contract
Sources: Merger Agreement (International Flavors & Fragrances Inc)
Company Actions. (a) Schedule 14D-9. The Company hereby approves and consents to the Transactions and represents that the Company Board, at a meeting duly called and held, has unanimously:
shall (i) determined that the Transactions are advisable, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
(iii) resolved to recommend that the Company’s stockholders accept the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Merger.
(b) On the date the Offer Documents are filed file with the SEC, the Company shall file concurrently with the SEC filing by Parent and Merger Sub of the Schedule TO and the Offer Documents, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto, and including all exhibits thereto, the “Schedule 14D-9”) containing, subject to (A) except as provided in Section 7.3(c)6.3, the recommendation described Company Board Recommendation and (B) a notice of appraisal rights in connection with the Merger in accordance with Section 2.3(a)(iii262 of the DGCL, (ii) and shall take all steps necessary to disseminate the Schedule 14D-9 promptly after the commencement of the Offer to the stockholders of the Company Stockholders as and to the extent required by Rule 14d-9 promulgated under the Exchange Act and any other applicable United States federal securities or other Laws, (iii) deliver a copy of the Schedule 14D-9 to Merger Sub at its principal executive offices in accordance with Rule 14d-9(b) promulgated under the Exchange Act and (iv) give telephonic notice to Nasdaq of the information required by Rule 14d-9 promulgated under the Exchange Act, and mail by means of first class mail a copy of the Schedule 14D-9 to Nasdaq in accordance with Rule 14d-9(b) promulgated under the Exchange Act. The Company shall cause the Schedule 14D-9 to comply as to form in all material respects with the requirements of applicable Law. If requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the Company Stockholders together with the Offer Documents. Each of Parent and Merger Sub shall promptly furnish in writing to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub and their respective Subsidiaries, the stockholders of Parent or Merger Sub and the directors and officers of Parent or Merger Sub that may be is required by applicable securities Laws or reasonably requested by so as to enable the Company for inclusion in to comply with its obligations under this Section 2.2(a). Parent, Merger Sub and the Schedule 14D-9. The Company shall cause cooperate in good faith to determine the Schedule 14D-9 to comply in all material respects with information regarding Parent and Merger Sub and their respective Subsidiaries, the provisions stockholders of applicable Law. The Company shall also include in Parent or Merger Sub and the Schedule 14D-9, directors and will obtain all officers of Parent or Merger Sub that is necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary 14D-9 in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respectsatisfy applicable Law. Each of the Company, Parent, Parent and Merger Sub shall promptly correct any information supplied provided by it or any of its respective Representatives for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the . The Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 14D-9, as so amended or supplemented corrected, to be filed with the SEC and disseminated to the stockholders of the CompanyCompany Stockholders, in each case as soon as reasonably practicable and case, as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SECLaws, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with by the SEC or mailing thereof to the stockholders of the Company, Nasdaq or responding to any comments of the SEC with respect to the Schedule 14D-9, the their staff. The Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such the Schedule 14D-9 or responseprior to the filing thereof with the SEC, and the Company shall give reasonable and good faith consideration to any such commentscomments made by ▇▇▇▇▇▇, ▇▇▇▇▇▇ Sub and their counsel (it being understood that Parent, ▇▇▇▇▇▇ Sub and their counsel shall provide any comments thereon as soon as reasonably practicable). The Company hereby consents shall provide in writing to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event Parent, Merger Sub and their counsel any and all written comments or other communications (and shall orally describe any oral comments or other oral communications) that the Company receives any comments or its counsel may receive from the SEC or any other Governmental Authority or its staff with respect to the Schedule 14D-914D-9 promptly after such receipt, it shall use its reasonable best efforts to (iand except for the disclosure permitted by Section 6.3(d) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.
(c) In connection with the Offer and the Mergermade in compliance therewith, the Company shall instruct its transfer agent to furnish Parent and Merger Sub promptly with mailing labels containing the names and addresses of the record holders of Common Stock as of the latest practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to holders of Common Stock. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, provide Parent, Merger Sub and their respective affiliatescounsel a reasonable opportunity to participate in the formulation of any response to any such comments of the SEC or its staff (including by providing a reasonable opportunity for Parent, associates Merger Sub and Representatives their counsel to review and comment on any such response, which comments the Company shall consider reasonably and in good faith). The Company shall use the information contained in reasonable best efforts to respond promptly to any such labels, listings comments. The Company consents to the inclusion in Schedule TO and files only in connection with the Offer Documents of the determinations and approvals of the Company Board set forth in Section 4.4 and the Merger, shall treat such information and materials Company Board Recommendation unless the Company Board has effected a Company Board Recommendation Change in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminated, will deliver to the Company all copies of such information then in their possession or under their control promptly upon the request of the CompanySection 6.3.
Appears in 1 contract
Company Actions. (a) The Company hereby approves shall, after affording Parent a reasonable opportunity to review and consents comment thereon, file with the SEC and mail to the Transactions holders of Common Shares, as promptly as practicable on the date of the filing by Parent and represents the Purchaser of the Offer Documents with the SEC, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the "Schedule 14D-9") reflecting the recommendation of the Company Board that holders of Shares tender their Shares pursuant to the Offer, and shall disseminate the Schedule 14D-9 as required by Rule 14d-9 promulgated under the Exchange Act. The Schedule 14D-9 will set forth, and the Company hereby represents, that the Company Board, at a meeting duly called and held, has unanimously:
(i) determined by unanimous vote of its directors that each of the Transactions are advisabletransactions contemplated hereby, including each of the Offer and the Merger, is fair to and in the best interests of the stockholders of the Company;
's stockholders, (ii) adopted approved the Offer and approved this Agreement in accordance with the DGCL and (iii) recommended acceptance of the Transactions Offer and declared it advisable adoption of this Agreement by the Company's stockholders (if such adoption is required by applicable law); provided, however, that such recommendation, adoption and approval may be withdrawn, modified or amended to the extent that the Company enter into this Agreement and consummate Board determines in good faith following consultation with outside counsel that failure to take such action would constitute a breach of the Transactions;
Company Board's fiduciary obligations under applicable law. The Company further represents that, prior to the execution hereof, Credit Suisse First Boston Corp. (iii"CSFB"), has delivered to the Company Board its opinion (subsequently confirmed in writing) resolved that, as of the date hereof, the consideration to recommend that be received by the Company’s stockholders accept holders of Common Shares (other than Parent or any of its affiliates) pursuant to the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate Merger is fair to such holders from a financial point of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Merger.
(b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any supplements or amendments thereto, the “Schedule 14D-9”) containing, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable)view. The Company hereby consents to the inclusion in the Offer Documents of a description the recommendations of the Company Recommendation. Board described in this Section 1.2(a).
(b) The Company hereby further agrees represents that the Schedule 14D-914D-9 will comply in all material respects with the provisions of applicable federal securities laws and, when on the date filed with the SEC and on the date first published, sent or given to the stockholders of the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading in any material respect; providedmisleading, however, except that no such obligation representation is undertaken made by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees the Purchaser in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parenton the one hand, and Merger Sub shall Parent and the Purchaser, on the other hand, agree promptly to correct any information supplied provided by it either of them for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or misleading in any material respect, and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders of the Company, in each case as soon as reasonably practicable and case, as and to the extent required by applicable U.S. federal securities lawslaw. The Company shall promptly notify agrees to provide to Parent upon the receipt of and its counsel any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and or its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 or response, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments may receive from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and (ii) take all other actions necessary to resolve the issues raised thereincomments.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent to will promptly furnish Parent and Merger Sub promptly the Purchaser with mailing labels labels, security position listings, any available non-objecting beneficial owner lists and any available listing or computer list containing the names and addresses of the record holders of the Common Stock Shares as of the latest most recent practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub the Purchaser with such additional available information and assistance (including periodically including, but not limited to, updated lists of stockholdersholders of Common Shares and their addresses, mailing labels and lists of security position listings positions and computer filesnon-objecting beneficial owner lists) and such other assistance as Parent the Purchaser or its agents may reasonably request in communicating the Offer to holders the Company's record and beneficial stockholders. Subject to the requirements of Common Stock. Except applicable law, and except for such steps as are reasonably necessary to disseminate the Offer Documents and any other documents and information reasonably necessary to consummate the Offer or and the Merger, Parent, Merger Sub Parent and the Purchaser and their respective affiliates, associates and Representatives agents shall use hold in confidence the information contained in any such labels, listings and files information, will use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, Merger and, if this Agreement shall be terminated, will deliver to the Company or destroy (as certified in writing), and will use their reasonable best efforts to cause their agents to deliver to the Company or destroy (as certified in writing), all copies of and any extracts or summaries from such information then in their possession or under their control promptly upon the request of the Companycontrol.
Appears in 1 contract
Company Actions. (a) The Company hereby approves and of, consents to and agrees to undertake the Transactions Offer and represents that its Board of Directors, based on the Company Boardunanimous recommendation of the Special Committee, at a meeting duly called and held, has unanimously:
unanimously (i) determined that this Agreement and the Transactions transactions contemplated hereby, including the Offer and the Merger, are advisable, fair to and in the best interests of the Company's stockholders of (other than Acquisition Company, Merger Subsidiary and their respective 4 14 affiliates, and the Company;
Continuing Stockholders, Mr. Jame▇ ▇▇▇▇▇▇▇ ▇▇▇ the Foundation), (ii) adopted and approved this Agreement and the Transactions transactions contemplated hereby, including the Offer and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
Merger, (iii) resolved to recommend that the Company’s stockholders of the Company accept the Offer and tender their Shares thereunder and approve the MergerMerger and this Agreement; and
provided, that such recommendation may be withdrawn, modified or amended as provided in Section 6.6 hereof, (iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute this Agreement and the restrictions on “significant business transactions” set forth in Stockholder Documents and the Washington Takeover Statute will not apply to the execution, delivery or performance transactions contemplated hereby and thereby for purposes of this Agreement or to the consummation Section 203 of the TransactionsDGCL, including and (v) resolved to amend the MergerRights Agreement as contemplated by Section 4.21 hereof.
(b) On As soon as practicable on the date the Offer Documents are filed with the SECis commenced, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any amendments and supplements or amendments thereto and including the exhibits thereto, the “"Schedule 14D-9”") containingwhich shall, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders fiduciary duties of the Company as Company's directors under applicable law and to the extent required by Rule 14d-9 under provisions of this Agreement, contain the Exchange Act. Each of Parent and Merger Sub shall promptly furnish recommendation referred to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9Section 1.2(a)(iii) hereof. The Company shall cause the Schedule 14D-9 to shall comply in all material respects with the provisions of applicable Lawfederal securities laws. The Company shall also include in take all steps necessary to cause the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., 14D-9 to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when be filed with the SEC and on the date first published, sent or given to be disseminated to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respectapplicable federal securities laws. Each of the Company, Parenton the one hand, and Acquisition Company and Merger Sub Subsidiary, on the other hand, shall promptly correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders of the Company, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Acquisition Company and its Representatives, on the one hand, Merger Subsidiary and the SEC, on the other hand. Prior their counsel shall be given a reasonable opportunity to the filing of review the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation before it is filed with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9SEC. In addition, the Company shall provide Parent, Acquisition Company and Merger Sub Subsidiary and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 in writing with any comments or response, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event other communications that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and (ii) take all or other actions necessary to resolve the issues raised thereincommunications.
(c) In connection with the Offer and the MergerOffer, if requested by Acquisition Company in writing, the Company shall instruct its transfer agent promptly furnish or cause to furnish Parent be furnished to Acquisition Company mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing or computer file containing the names and addresses of the record holders of Common Stock the Shares as of the latest practicable date and of those persons becoming record holders subsequent to such a recent date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub Acquisition Company with such additional information and assistance (including periodically updated lists of stockholdersholders of Shares and their addresses, mailing labels and lists of security position listings positions) and computer files) such other assistance as Parent Acquisition Company or its agents may reasonably request in writing in communicating the Offer to holders the record and beneficial stockholders of Common Stockthe Company. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives shall use the information contained in any such labels, listings and files only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminated, will deliver to the Company all copies of such information then in their possession or under their control promptly upon the request of the Company.steps
Appears in 1 contract
Company Actions. (a) The Company hereby approves and consents to the Transactions and represents that the Company Boardits Board of Directors, at a meeting duly called and held, held has unanimously:
unanimously (i) determined that this Agreement and the Transactions transactions contemplated hereby, including the Offer and the Merger, are advisableadvisable to, fair to and in the best interests of of, the stockholders of the Company;
Company and its stockholders, (ii) adopted and approved this Agreement and approved the Transactions transactions contemplated hereby, including the Offer and declared it advisable that the Merger, in accordance with the requirements of the MGCL (and such approval includes the approval of the Merger by the Board of Directors of the Company enter into this Agreement and consummate (or other required declaration or determination by the Transactions;
Board of Directors of the Company, as applicable) pursuant to both Section 3-105 of the MGCL and, if available, Section 3-106 of the MGCL), (iii) resolved to recommend that stockholders of the Company’s stockholders Company accept the Offer and tender their shares of Company Common Stock to Merger Sub in the Offer and, to the extent required by applicable Law, approve the Merger; and
Merger (the “Company Recommendation”) and (iv) approved taking taken all other actions so that necessary to exempt the Offer, the Merger, this Agreement and the transactions contemplated hereby from the restrictions contained imposed by the MGCL, including Title 3, Subtitle 6 and Title 3, Subtitle 7 of the MGCL, or any other “fair price,” “moratorium,” “control share acquisition” or similar anti-takeover statute, which exemption shall be irrevocable during the term of this Agreement. The Company consents to the inclusion of the Company Recommendation in the Company’s certificate Offer Documents. [The Company has been advised that all of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute its directors and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply executive officers who own shares of Company Common Stock intend to tender such shares pursuant to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the MergerOffer.]
(b) On the same date that the amendment to the Offer Documents are contemplated by the first sentence of Section 2.1(b) is filed with the SEC, the Company shall shall, in a manner that complies with Rule 14d-9 under the Exchange Act, file with the SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer or an amendment thereto (such Schedule 14D-9as originally filed, together with any all amendments, supplements or amendments and exhibits thereto, the “Schedule 14D-9”) containingwhich shall contain the Company Fairness Opinion and, subject to Section 7.3(c6.5(c), the recommendation described in Section 2.3(a)(iiiCompany Recommendation; provided that the Company may file the Schedule 14D-9 (or an amendment thereto) and shall disseminate at an earlier date if required by applicable Law. The Company agrees to cause the Schedule 14D-9 to be filed with the stockholders SEC and disseminated to holders of shares of Company Common Stock as required by and in accordance with applicable U.S. federal securities Laws and to use its reasonable best efforts to cause the Schedule 14D-9 to be distributed to such holders concurrently with the Offer Documents, as amended pursuant to Section 2.1(b). The Company, on the one hand, and Parent and Merger Sub, on the other hand, agree to promptly correct any information provided by it for use in the Schedule 14D-9 if it shall have become false or misleading in any material respect or as otherwise required by Law. The Company agrees to cause the Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to holders of the shares of Company Common Stock as and to the extent required by Rule 14d-9 under the Exchange Actand in accordance with applicable U.S. federal securities Laws. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be is required by applicable securities Laws or reasonably requested by the Company for inclusion in connection with the obligations relating to Schedule 14D-914D-9 contained in this Section 2.2(b). The Company Parent, Merger Sub and their counsel shall cause be given a reasonable opportunity to review and comment on the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) before it is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9SEC. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the stockholders of the Company, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9In addition, the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 with (i) any comments or responsecommunications, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event whether written or oral, that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the Company’s receipt of such comments and (ii) take all other actions necessary a reasonable opportunity to resolve participate in the issues raised thereinresponse to those comments and to provide comments on that response.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent to promptly furnish Parent and Merger Sub promptly with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of the all record holders of shares of Company Common Stock and lists of securities positions of shares of Company Common Stock held in stock depositories, in each case, true and correct as of the latest most recent practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish provide to Parent and Merger Sub such additional information and assistance (including periodically updated lists of stockholders, security position listings mailing labels and computer fileslists of securities positions) and such other assistance as Parent or its agents may reasonably request in communicating the Offer to holders of Common Stock. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives shall use the information contained in any such labels, listings and files only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminated, will deliver to the Company all copies of such information then in their possession or under their control promptly upon the request of the CompanyOffer.
Appears in 1 contract
Sources: Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Company Actions. (a) The Company hereby approves of and consents to the Transactions Offer and represents that the Company BoardBoard of Directors, at a meeting duly called and held, has unanimously:
(i) determined that the Transactions are advisable, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions transactions contemplated hereby, including the Offer and declared it advisable that the Company enter into Merger (as defined in Section 1.4), which approvals constitute approval of this Agreement Agreement, the Offer and consummate the Transactions;
Merger for purposes of Section 203 of the General Corporation Law of the State of Delaware (iiithe "DGCL"), and (ii) resolved to recommend that the Company’s stockholders of the Company accept the Offer Offer, tender their Shares thereunder to the Purchaser and approve and adopt this Agreement and the Merger; and
(iv, which recommendation shall not be withdrawn, modified or amended except as permitted by Section 5.4(b) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Mergerhereof.
(b) On the date the Offer Documents are filed with the SEC, the The Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto and including the exhibits thereto, the “"Schedule 14D-9”") containingwhich shall, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders fiduciary duties of the Company as Company's directors under applicable law and to the extent required by Rule 14d-9 under provisions of this Agreement, contain the Exchange Act. Each recommendation referred to in clause (ii) of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9Section 1.2(a) hereof. The Company shall will use its reasonable best efforts to cause the Schedule 14D-9 to be filed on the same date that the Schedule 14D-1 is filed; provided, however, that in any event the Schedule 14D-9 will be filed no later than ten business days following the commencement of the Offer. The Schedule 14D-9 will comply in all material respects with the provisions of applicable Law. The Company shall also include in federal securities laws and, on the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when date filed with the SEC and on the date first published, sent or given to the stockholders of the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; providedmisleading, however, except that no such obligation representation is undertaken made by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees the Purchaser in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9Offer Documents. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in The Company further agrees to take all steps necessary to cause the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order filed with the SEC and to make the statements thereinbe disseminated to holders of Shares, in light of each case as and to the circumstances under which they were made, not misleading in any material respectextent required by applicable federal securities laws. Each of the Company, Parenton the one hand, and Merger Sub shall Parent and the Purchaser, on the other hand, agrees promptly to correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or and misleading in any material respect, respect and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders holders of the CompanyShares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company counsel shall provide Parent, Merger Sub and their counsel be given a reasonable opportunity to review and comment on such the initial Schedule 14D-9 or responsebefore it is filed with the SEC. In addition, and the Company shall give reasonable agrees to provide Parent, the Purchaser and good faith consideration to their counsel in writing with any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event comments or other communications that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and (ii) take all or other actions necessary to resolve the issues raised thereincommunications.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent will promptly furnish or cause to furnish Parent be furnished to the Purchaser mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing or computer file containing the names and addresses of the record holders of Common Stock the Shares as of a recent date (which shall in no event be more than ten days prior to the latest practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicablehereof), and shall furnish to Parent and Merger Sub the Purchaser with such additional information and assistance (including periodically updated lists of stockholdersholders of Shares and their addresses, mailing labels and lists of security position listings positions) and computer files) such other assistance as Parent the Purchaser or its agents may reasonably request in communicating the Offer to holders the record and beneficial shareholders of Common Stockthe Company. Except for such steps as are necessary to disseminate the Offer Documents Documents, Parent and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives Purchaser shall use hold in confidence the information contained in any of such labelslabels and lists and the additional information referred to in the preceding sentence, listings and files will use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure AgreementOffer, and, if this Agreement shall be is terminated, will upon request of the Company deliver or cause to be delivered to the Company all copies of such information then in their its possession or under their control promptly upon the request possession of the Companyits agents or representatives.
Appears in 1 contract
Company Actions. The Company hereby consents to the Offer and represents that (a) The Company hereby approves and consents to the Transactions and represents that the Company Board, its Board of Directors (at a meeting duly called and held, ) has unanimously:
(i) determined that each of the Transactions are advisable, Offer and the Merger is fair to and in the best interests of the stockholders holders of the Company;
Company Common Stock, (ii) adopted approved and approved declared advisable this Agreement and the Transactions transactions contemplated hereby, including the Offer and declared it advisable that the Company enter into Merger, and such approval constitutes approval of the Offer, this Agreement and consummate the Transactions;
transactions contemplated hereby, including the Merger, for purposes of Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), and (iii) resolved to recommend that the Company’s stockholders accept acceptance of the Offer and approve approval and adoption of this Agreement and the Merger; and
Merger by the holders of Company Common Stock (ivsubject to the fiduciary duties of the Board of Directors under Delaware Law), and (b) approved taking all actions so CIBC World Markets Corp. has delivered to the Board of Directors of the Company its written opinion that the restrictions contained consideration to be received by the holders of Company Common Stock (other than HC and its affiliates) in the Company’s certificate Offer and the Merger is fair, from a financial point of incorporationview, to such holders, subject to the restrictions on “business combinations” assumptions and qualifications set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply such opinion (a photocopy of which has been delivered to the execution, delivery or performance of this Agreement or Parent). The Company hereby agrees to the consummation of the Transactions, including the Merger.
(b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto, the “"Schedule 14D-9”") containing, containing the recommendation of the Board of Directors of the Company referred to in clause (a) (iii) of the preceding sentence (subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iiifiduciary duties of the Board of Directors under Delaware Law) and shall disseminate mail or cause to be mailed the Schedule 14D-9 to the stockholders holders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9Common Stock. The Company shall will use its reasonable efforts to cause the Schedule 14D-9 to be filed with the SEC on the same date as Parent's and Merger Sub's Schedule 14D-1 is filed with the SEC and mailed together with the Offer Documents; provided that in any event the Schedule 14D-9 shall be filed with the SEC and mailed to the holders of Company Common Stock no later than 10 business days following the 8 -4- commencement of the Offer. The Schedule 14D-9 shall comply in all material respects with the provisions of Exchange Act and any other applicable Lawlaw and shall contain (or shall be amended in a timely manner to contain) all information which is required to be included therein in accordance with the Exchange Act and the rules and regulations thereunder and any other applicable law. The Company shall also include information contained in the Schedule 14D-9 (other than information furnished in writing by Parent or Merger Sub expressly for inclusion in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., as to permit which the Company to include in makes no representations or warranties) will not, at the respective times the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) 14D-9 is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC (or such filings are amended or supplemented) and on the date first published, sent or given to the stockholders holders of the CompanyCompany Common Stock, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; providedmisleading. The Company, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby each agree that the promptly to correct any information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or misleading in any material respect, respect and the Company shall further agrees to take all steps lawful action necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed promptly with the SEC and disseminated to the stockholders holders of the CompanyCompany Common Stock, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities lawslaw. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub and their counsel a reasonable shall be given the opportunity to review and comment on such the Schedule 14D-9 or response, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents amendments thereto prior to the inclusion in filing thereof with the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9SEC. In the event that the Company receives any comments from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent to promptly furnish Parent and Merger Sub promptly with mailing labels security position listings and all available listings or computer files containing the names and addresses of the record holders of the Company Common Stock as of the latest practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub with such information and assistance (including periodically updated lists of stockholders, stockholders and lists of security position listings and computer filespositions) as Parent and Merger Sub or any of their agents may reasonably request in communicating the Offer to the record and beneficial holders of Company Common Stock. Except Subject to the requirements of applicable law, and except for such steps actions as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or and the Merger, Parent, Parent and Merger Sub and each of their respective affiliates, associates associates, partners, employees, agents and Representatives advisors shall use hold in confidence the information contained in any such labelslists and files, listings and files shall use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be is terminated, will shall deliver promptly to the Company all copies of such information then in their possession or under their control promptly upon the request of the Companypossession.
Appears in 1 contract
Company Actions. (a) The Company hereby approves of and consents to the Transactions Offer, and represents and warrants that the Company BoardBoard of Directors, at a meeting duly called and held, has unanimously:
unanimously (i) determined that approved this Agreement, and deemed this Agreement, the Offer, the Merger and the Transactions are advisable, fair to and in the best interests of the stockholders of Company and the Company;
Company Stockholders; (ii) approved and adopted this Agreement and approved the Transactions, including the Offer and the Merger, in all respects, and, subject to the accuracy of the representation set forth in Section 4.2(b) of this Agreement, such approval constitutes approval of the Offer, the Merger, this Agreement and the Transactions and declared it advisable that for purposes of Section 203 of the Company enter into this Agreement and consummate the Transactions;
DGCL; (iii) subject to Section 6.3(c), resolved to recommend that the Company’s stockholders Company Stockholders accept the Offer Offer, that the Company Stockholders tender their Shares in the Offer, and approve that the Merger; and
Class A Stockholders adopt this Agreement to the extent required by applicable Law (the "Company Board Recommendation") and (iv) approved taking all actions so that for purposes of Article IV, Sections 1A.6, 1A.8 and 1A.15 of the restrictions contained Company Charter, consented to the transfer of Shares pursuant to the Offer. The Company consents to the inclusion of the Company Board Recommendation in the Company’s certificate of incorporationOffer Documents, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply subject to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the MergerSection 6.3(c).
(b) On As soon as reasonably practicable following (but on the same date as) the filing of the Offer Documents are filed with the SECDocuments, the Company shall shall, in a manner that complies with Rule 14d-9 under the Exchange Act, file with the SEC a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments, supplements or amendments and exhibits thereto, the “"Schedule 14D-9”") containingwhich shall, subject to the provisions of Section 7.3(c), the recommendation described in Section 2.3(a)(iii6.3(c) and shall disseminate the Schedule 14D-9 to the stockholders fiduciary duties of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each Board of Parent and Merger Sub shall promptly furnish to Directors, contain the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9Board Recommendation. The Company shall agrees to cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when be filed with the SEC and, subject to Purchaser's compliance with Section 1.1(a), disseminated to holders of Shares as required by and in accordance with applicable U.S. federal securities Laws. The Company, on the date first publishedone hand, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. and Parent and Merger Sub hereby Purchaser, on the other hand, agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or misleading in any material respect, and the respect or as otherwise required by Law. The Company shall agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and disseminated to the stockholders holders of the Company, in each case Shares as soon as reasonably practicable and as and to the extent required by and in accordance with applicable U.S. federal securities lawsLaws. The Company Parent and Purchaser shall promptly notify furnish to the Company all information concerning Parent upon and Purchaser that is required or reasonably requested by the receipt of any comments from Company in connection with the SEC, or any request from the SEC for amendments or supplements, obligations relating to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand14D-9 contained in this Section 1.2(b). Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub Purchaser and their counsel shall be given a reasonable opportunity to review and comment on such the Schedule 14D-9 or responsebefore it is filed with the SEC, and the Company shall give reasonable and good faith consideration to any such commentscomments made by Parent, Purchaser and their counsel. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of In addition, the Company Board contained agrees to provide Parent, Purchaser and their counsel in the Schedule 14D-9. In the event writing with any comments or communications that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-914D-9 promptly after the Company's receipt of such comments, it and any oral or written responses thereto and shall use its provide Parent, Purchaser and their counsel a reasonable best efforts opportunity to (i) respond promptly participate in the response of the Company to such those comments and to provide comments on that response (ii) take all other actions necessary to resolve which reasonable and good faith consideration shall be given), including by participating with the issues raised thereinCompany or its counsel in any discussions or meetings with the SEC.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent promptly furnish or cause to furnish Parent be furnished to Purchaser mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing or computer file containing the names and addresses of the record holders of Common Stock the Shares as of the latest practicable date and of those persons becoming record holders subsequent to such a recent date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall promptly furnish to Parent and Merger Sub Purchaser with such information and assistance (including periodically updated including, but not limited to, lists of stockholdersholders of the Shares, updated periodically, and their addresses, mailing labels and lists of security position listings and computer filespositions) as Parent Purchaser or its agents may reasonably request in communicating the Offer to holders of Common Stockrequest. Except for such steps as are required by applicable Law, and except as necessary to disseminate communicate regarding the Offer Documents and any other documents necessary to consummate Offer, the Offer Merger or the MergerTransactions with the Company Stockholders, Parent, Merger Sub Parent and Purchaser (and their respective affiliates, associates and Representatives Representatives) shall use hold in confidence the information contained in any such labels, listings and files only files, shall use such information solely in connection with the Offer Offer, the Merger and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure AgreementTransactions, and, if this Agreement shall be is terminated or the Offer is otherwise terminated, will shall promptly deliver or cause to be delivered to the Company or destroy all copies of such information information, labels, listings and files then in their possession or under in the possession of their control promptly upon Representatives.
(d) The Company hereby: (i) waives all rights to repurchase any Shares purchased by Purchaser pursuant to the request Offer or the terms of this Agreement, whether arising pursuant to Article IV Section 1A.5 or 9 of the CompanyCompany Charter or otherwise, (ii) consents to the future transfer of such Shares, and waives any right to purchase such Shares upon any subsequent transfer, whether arising pursuant to Article IV Section 1A.5, 6 or 8 of the Company Charter or otherwise, provided such transfer does not delay the consummation of the Merger, and (iii) represents, warrants, covenants and agrees that the Class A Shares purchased pursuant to the terms of this Agreement shall be entitled to the same voting and consent rights as Class A Shares that remain outstanding following consummation of the Offer and held by persons other than Purchaser.
(e) If at any time following the Acceptance Time, the number of holders of record of the Class A Shares is fewer than three hundred (300), the Company shall use reasonable best efforts to terminate registration of the Class A Shares under the Exchange Act, including the filing of Exchange Act Form 15 with the SEC.
Appears in 1 contract
Company Actions. (a) The Company hereby approves and by this Agreement consents to the Transactions Offer and the Merger and represents and warrants that the Company Board, (i) its Board of Directors (at a meeting duly called and held, ) has unanimously:
(iA) determined that each of this Agreement, the Transactions Offer and the Merger are advisablefair to, fair to and in the best interests of, Company and the holders of Common Stock, and has declared that the Offer and the Merger are advisable, (B) approved the Offer, the Merger and this Agreement in accordance with the provisions of the stockholders DGCL, (C) approved the Tender Agreement for purposes of Section 203 of the Company;
DGCL, and (ii) adopted and approved this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
(iiiD) resolved (subject to the limitations contained in this Agreement) to recommend that the Company’s stockholders holders of Common Stock accept the Offer and approve tender their Common Stock pursuant to the Merger; and
(iv) approved taking all actions so Offer and that the restrictions contained holders of Common Stock adopt this Agreement and (ii) Salomon Smith Barney Inc. (the "Financial Advisor") has delivered t▇ ▇▇▇ ▇▇▇▇▇ ▇f ▇▇▇▇▇tors of Company its opinion as described in Section 4.1(t). Company shall deliver to Parent a complete and correct executed copy of the written opinion of the Financial Advisor solely for informational purposes promptly after receipt thereof by Company. Subject to the provisions of Section 6.5(b), Company by this Agreement consents to the inclusion in the Company’s certificate Offer Documents of incorporation, the restrictions on “business combinations” set forth recommendation of the Board of Directors of Company in favor of the Delaware Takeover Statute Offer and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance adoption of this Agreement or to the consummation of the Transactions, including the MergerAgreement.
(b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC SEC, contemporaneously with the filing by Parent and Merger Sub of the Schedule TO, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any supplements or amendments thereto, the “"Schedule 14D-9”") containing, subject to Section 7.3(c6.5(b), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders of the Board of Directors of Company as in favor of the Offer and to the extent required by Rule 14d-9 under the Exchange Actapproval of this Agreement. Each of Parent and Merger Sub shall will promptly furnish supply to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company writing, for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply , all information concerning Parent's Designees (as defined in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9Section 1.4), and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(bas required by Section 14(f) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The and Rule 14f-1 promulgated thereunder, and Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no include such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, Parent and Merger Sub shall promptly correct any information supplied provided by it them for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information shall be, or shall have become false or misleading in any material respect, respect and the Company shall take all steps lawful action necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed promptly with the SEC and disseminated to the stockholders holders of the Company, in each case as soon as reasonably practicable and Common Stock as and to the extent required by applicable U.S. federal securities lawslaw. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 or response, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents be promptly provided with copies of the recommendation of the Company Board contained in the Schedule 14D-9. In the event that the Company receives , any comments received from the SEC or its staff with respect to the Schedule 14D-9, it 14D-9 and shall use its be given a reasonable best efforts opportunity to (i) respond promptly review and comment on the Schedule 14D-9 and any amendments thereto prior to such comments and (ii) take all other actions necessary to resolve the issues raised thereinfiling thereof with the SEC.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent to promptly furnish Parent with (or cause Parent to be furnished with) mailing labels, security position listings and Merger Sub promptly with mailing labels all available listings or computer files containing the names and addresses of the record holders of Common Stock as of the latest practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish Parent with (or cause Parent to Parent and Merger Sub be furnished with) such information and assistance (including periodically updated lists of stockholders, mailing labels and lists of security position listings and computer filespositions) as Parent or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Common Stock. Except Subject to the requirements of Applicable Law, and except for such steps actions as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or and the Merger, Parent, Parent and Merger Sub and each of their respective affiliates, associates associates, partners, employees, agents and Representatives advisors shall use hold in confidence the information contained in any such labels, listings lists and files files, shall use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, Merger and, if this Agreement shall be is terminated, will shall deliver promptly to Company (or destroy and certify to Company in writing the Company destruction of) all copies of such information (and any copies, compilations or extracts thereof or based thereon) then in their possession or under their control promptly upon control.
(d) Company represents and warrants that it has been advised that each of its directors and executive officers presently intends to tender pursuant to the request Offer all Common Stock owned of record and beneficially by him, other than shares of Common Stock beneficially owned and represented by Options (as defined in Section 3.2) and except to the Companyextent such tender would violate applicable securities laws; provided that the failure of any such director or executive officer to tender his shares pursuant to the Offer shall not constitute a breach of this Agreement.
Appears in 1 contract
Company Actions. (a) Schedule 14D-9. The Company hereby approves and consents to the Transactions and represents that the Company Board, at a meeting duly called and held, has unanimously:
shall (i) determined that the Transactions are advisable, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
(iii) resolved to recommend that the Company’s stockholders accept the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Merger.
(b) On the date the Offer Documents are filed file with the SEC, concurrently with or as promptly as reasonably practicable after the Company shall file with filing by Parent of the SEC Schedule TO, the Parent Schedule 13E-3 and the Offer Documents (but in no event later than the date of the Commencement Time), a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto, and including all exhibits thereto, the “Schedule 14D-9”) and a Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, and including all exhibits thereto, the “Company Schedule 13E-3”) with respect to the Offer in accordance with Rule 13e-3(d) promulgated under the Exchange Act containing, subject to except as provided in Section 7.3(c)4.2, the recommendation described in Section 2.3(a)(iiiCompany Board Recommendation and (ii) and shall disseminate cause the Schedule 14D-9 and related documents to be disseminated promptly after the Commencement Time to the stockholders of the Company Shareholders as and to the extent required by Rule Rules 14d-9 and 13e-3(f) promulgated under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish , any other applicable United States federal securities Laws, the Singapore Code (subject to the Company or SIC Rulings) and the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by requirements of the Company for inclusion in the Schedule 14D-9JSE. The Company shall cause the Schedule 14D-9 and the Company Schedule 13E-3 (i) to comply as to form in all material respects with the provisions requirements of applicable Law. The Company shall also include the Exchange Act (including, in the case of both the Schedule 14D-9, 14D-9 and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-913E-3, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(bRules 14d-9(d) of Regulation M-A and 13e-3(e) under the Exchange Act ), the Singapore Code (regardless of whether Item 1015(b) is applicable). The Company hereby consents subject to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC SIC Rulings) and on the date first published, sent or given applicable other Law and (ii) to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading misleading. If requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the Company Shareholders together with the Offer Documents. Parent shall promptly furnish in any material respect; providedwriting to the Company all information concerning Parent and its Subsidiaries, however, the shareholders of Parent and the directors and officers of Parent that no such obligation is undertaken required by applicable Law or is reasonably requested by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference be included in the Schedule 14D-9 or the Company Schedule 13E-3 so as to enable the Company to comply with its obligations under this Section 1.2(a). Parent and the Company shall not contain any untrue statement cooperate in good faith to determine the information regarding Parent and its Subsidiaries, the shareholders of a material fact Parent and the directors and officers of Parent that is necessary to include in the Schedule 14D-9 or omit to state any material fact required to be stated therein or necessary the Company Schedule 13E-3 in order to make satisfy applicable Law and the statements therein, in light of Singapore Code (subject to the circumstances under which they were made, not misleading in any material respectSIC Rulings). Each of the Company, Parent, Company and Merger Sub Parent shall promptly correct any information supplied provided by it or any of its respective Representatives for inclusion or incorporation by reference use in the Schedule 14D-9 or the Company Schedule 13E-3 if and to the extent that such information shall have become false or misleading in any material respect, and the . The Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 or the Company Schedule 13E-3, as applicable, as so amended or supplemented corrected, to be filed with the SEC and disseminated to the stockholders of the CompanyCompany Shareholders, in each case as soon as reasonably practicable and case, as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon Law, including the receipt of any comments from Singapore Code (subject to the SECSIC Rulings), or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with by the SEC or mailing thereof to its staff, NASDAQ or the stockholders JSE. Unless the Company Board has effected a Company Change of the Company, or responding to Board Recommendation and except in connection with any comments of the SEC disclosures made in compliance with respect to the Schedule 14D-9Section 4.2(f), the Company shall provide Parent, Merger Sub Parent and their its counsel a reasonable opportunity to review and comment on such the Schedule 14D-9 or responseand the Company Schedule 13E-3 prior to the filing thereof with the SEC, and the Company shall give reasonable and good faith consideration to any such commentscomments made by Parent and its counsel (it being understood that Parent and its counsel shall provide any comments thereon as soon as reasonably practicable). The Company hereby consents to the inclusion in the Offer Documents of the recommendation of Unless the Company Board contained has effected a Company Change of Board Recommendation and except in connection with any disclosures made in compliance with Section 4.2(f), the Schedule 14D-9. In the event Company shall provide in writing to Parent and its counsel any and all written comments or other substantive communications (and shall orally describe any oral comments or other substantive oral communications) that the Company receives any comments or its counsel may receive from the SEC SEC, the SIC or any other Governmental Entity or its staff with respect to the Schedule 14D-914D-9 or the Company Schedule 13E-3 promptly after such receipt, it and unless the Company Board has effected a Company Change of Board Recommendation and except in connection with any disclosures made in compliance with Section 4.2(f), the Company shall provide Parent and its counsel a reasonable opportunity to participate in the formulation of any response to any such comments of the SEC, the SIC or any other Governmental Entity or its staff (including by providing a reasonable opportunity for Parent and its counsel to review and comment on any such response, which comments the Company shall consider in good faith). The Company shall use its reasonable best efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.
(c) In connection with the Offer and the Merger, the Company shall instruct its transfer agent to furnish Parent and Merger Sub promptly with mailing labels containing the names and addresses of the record holders of Common Stock as of the latest practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to holders of Common Stock. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives shall use the information contained in any such labels, listings and files only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminated, will deliver to the Company all copies of such information then in their possession or under their control promptly upon the request of the Companycomments.
Appears in 1 contract
Sources: Transaction Implementation Agreement (Grindrod Shipping Holdings Ltd.)
Company Actions. (a) The Subject to Sections 5.2 and 8.4, the Company hereby approves of and consents to the Transactions Offer, the Merger and represents that the Company Board, at a meeting duly called and held, has unanimously:
(i) determined that the Transactions are advisable, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved other transactions contemplated by this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
(iii) resolved to recommend that the Company’s stockholders accept the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporationcollectively, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Merger”).
(b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC in a manner that complies with Rule 14d-9 under the Exchange Act a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments, supplements or amendments and exhibits thereto, the “Schedule 14D-9”) containing), including, subject to Section 7.3(c5.2(e), the recommendation described in Section 2.3(a)(iii) Company Board Recommendation, and shall disseminate the Schedule 14D-9 to the stockholders holders of Company Stock. The Schedule 14D-9 shall also contain the notice of the approval of the Merger and that appraisal rights are available under Section 262(d)(2) of the DGCL. The Company shall set the record date for the Company’s stockholders entitled to receive such notice of appraisal rights as the same date as the Stockholder List Date and shall disseminate the Schedule 14D-9 including such notice of appraisal rights to the holders of Company Stock to the extent required by Rule 14d-9 Section 262(d)(2) of the DGCL or other applicable Law at the time the Company first files the Schedule 14D-9 with the SEC such that the Schedule 14D-9 shall constitute a valid notice of appraisal rights under Section 262(d)(2) of the Exchange ActDGCL. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion Exchange Act to be set forth in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, Parent and Merger Sub shall promptly correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps reasonably necessary to amend or supplement the Schedule 14D-9 and (i) to cause the Schedule 14D-9 14D-9, as so amended or supplemented supplemented, to be filed with the SEC and disseminated to the stockholders holders of the CompanyCompany Stock, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal Federal securities laws. The Company shall promptly notify Parent upon Laws, Section 262(d)(2) of the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, DGCL and/or other applicable Law and (ii) to cause the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of as amended or supplemented, to comply as to form in all material oral communications between respects with the Company requirements of the Exchange Act, the applicable rules and its Representatives, on the one hand, regulations of NASDAQ and the SEC, on the all other handapplicable Laws. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing the dissemination thereof to the stockholders holders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9Company Stock, the Company shall provide Parent, Parent and Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 or response14D-9, and the Company shall give reasonable and good faith consideration to all comments made by Parent and Merger Sub or their counsel. The Company shall promptly provide Parent and Merger Sub and their counsel with copies of all written comments, and shall promptly inform Parent and Merger Sub and their counsel of all oral comments, that the Company or their counsel may receive from the SEC or its staff with respect to the Schedule 14D-9, and prior to responding to any such commentscomments of the SEC or its staff with respect to the Schedule 14D-9, give reasonable and good faith consideration to all comments made by Parent, Merger Sub or their counsel, and to participate in any substantive telephonic communications with the staff of the SEC related thereto. Notwithstanding the foregoing, the obligations of the Company in this Section 1.2(b) shall not apply from and after any Adverse Recommendation Change or in connection with any disclosures made in compliance with Section 5.2, The Company hereby consents to the inclusion in the Offer Documents of the recommendation of Company Board Recommendation (except to the extent that the Company Board contained in the Schedule 14D-9. In the event that shall have withdrawn or modified the Company receives any comments from the SEC or its staff Board Recommendation in accordance with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised thereinSection 5.2(e)).
(c) In connection with the Offer and the MergerOffer, the Company shall instruct cause its transfer agent to furnish Parent and Merger Sub promptly with mailing labels containing the names and addresses of the record holders of Common Company Stock as of the latest practicable a recent date and of those persons Persons becoming record holders subsequent to such date, together with copies of all lists of stockholdersholders of Company Stock, security position listings and listings, computer files files, a non-objecting beneficial owners list and all other information in the Company’s possession or control regarding the beneficial owners of Common Company Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub such information and assistance (including periodically updated lists of stockholdersholders of Company Stock, security position listings and computer files) as Parent may reasonably request in communicating the Offer to the holders of Common Company Stock. Except The date of the list used to determine the Persons to whom the Offer Documents and the Schedule 14D-9 are first disseminated is referred to as the “Stockholder List Date.” Subject to the requirements of applicable Law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the MergerTransactions, Parent, Parent and Merger Sub and their respective affiliates, associates and Representatives shall use hold in confidence in accordance with the terms of the Confidentiality Agreement the information contained in any such labels, listings and files files, shall use such information only in connection with commencing and consummating the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, Merger and, if this Agreement shall be terminated, will shall promptly, upon request, deliver to the Company all copies of such information then in their possession information.
(d) The Company shall register the transfer of shares of Company Stock accepted for payment effective immediately after the Acceptance Time; provided that Merger Sub pays for such shares of Company Stock at or under their control promptly upon the request of the Companyimmediately after such transfer.
Appears in 1 contract
Company Actions. (a) The Company hereby approves and consents to the Transactions and represents that that:
(i) the Company Board, at a meeting duly called and held, has unanimously:
(iA) determined that the Transactions are advisable, fair to and in the best interests of the stockholders shareholders of the Company;
(iiB) adopted and approved this Agreement and the Transactions and declared it advisable that the Company enter into this Agreement and consummate the Transactions;
(iiiC) resolved to recommend that the Company’s stockholders 's shareholders accept the Offer and approve the Merger and the Plan of Merger; and
(ivD) approved taking taken all actions so that the restrictions contained in the Company’s certificate Articles of incorporation, Incorporation and Chapter 23B.19 of the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute WBCA will not apply to the execution, delivery or performance of this Agreement or the Shareholder Tender Agreements, or to the consummation of the Transactions, including the MergerMerger (the "Takeover Statutes"); and
(ii) the Continuing Directors of the Company (as such term is defined in the Company's Articles of Incorporation), voting separately as a subclass of the Company Board, have unanimously adopted and approved this Agreement and the Merger pursuant to Section 13.2.2 of the Company's Articles of Incorporation.
(b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any supplements or amendments thereto, the “"Schedule 14D-9”") containing, subject to Section 7.3(c6.5(b), the recommendation described in Section 2.3(a)(iii1.2(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders shareholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish or otherwise make available to the Company or the Company’s 's legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the stockholders shareholders of the Company, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. United States federal securities lawsLaws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Company Adverse Recommendation Change of Recommendation with the SEC or mailing thereof to the stockholders shareholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 or response, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.
(c) In connection with the Offer and the Merger, the Company shall instruct its transfer agent to furnish Parent and Merger Sub promptly with mailing labels containing the names and addresses of the record holders of Company Common Stock as of the latest practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholdersshareholders, security position listings and computer files and all other information in the Company’s 's possession or control regarding the beneficial owners of Company Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub such information and assistance (including periodically updated lists of stockholdersshareholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to holders of Company Common Stock. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives shall use the information contained in any such labels, listings and files only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Confidentiality Agreement, and, if this Agreement shall be terminated, will deliver to the Company all copies of such information then in their possession or under their control promptly upon the request of the Company.
Appears in 1 contract
Company Actions. (a) The Company hereby approves and consents to the Transactions --------------- Offer and represents that (i) the Board of Directors of the Company Boardand acting on the unanimous recommendation of a special committee of the Board of Directors of the Company comprised of all members of the Board of Directors other than Messrs. Bond, Chalsty, Lemon and ▇▇▇▇▇▇▇▇ (the "Special Committee"), at a ----------------- meeting duly called and held, has has, with Messrs. Bond, Chalsty, Lemon and ▇▇▇▇▇▇▇▇ obstaining, [unanimously:
] (iA) determined that this Agreement and the Transactions transactions contemplated hereby, including the Offer and the Merger, taken together, are advisable, fair to and in the best interests of the stockholders holders of the Company;
shares of Company Common Stock, (iiB) adopted and approved this Agreement and the Transactions and declared it advisable that transactions contemplated hereby, including the Company enter into this Agreement and consummate Merger, which approval satisfies in full the Transactions;
requirements of Section 203 of the General Corporation Law of the State of Delaware (iiithe "Delaware Law") with respect to the transactions contemplated ------------ hereby, (C) resolved to recommend that the Company’s stockholders of the Company accept the Offer and approve Offer, tender their shares of Company Common Stock thereunder to Merger Co. and, if required by applicable law in order to consummate the Merger; and
, approve and adopt this Agreement and the transactions contemplated hereby and (ivii) approved taking the Company has provided the applicable notice of termination to Rawhide Holdings Corporation required by Section 10.1(e) of the Agreement and Plan of Merger, dated as of October 1, 2000 among the Company, Rawhide Holdings Corporation and Rawhide Acquisition Corporation ("Rawhide Merger Agreement"). The Company hereby ------------------------ consents to the inclusion in the Offer Documents of the recommendation of the Board described in the immediately preceding sentence. The Company has been advised by each of its directors and executive officers that they intend either to tender all actions so shares of Company Common Stock beneficially owned by them to Merger Co. pursuant to the Offer or to vote such shares of Company Common Stock in favor of the approval and adoption of the transactions contemplated hereby. The Company further represents that ▇.▇. ▇▇▇▇▇▇ Securities Inc. has delivered to the Company's Board of Directors its written opinion that the restrictions contained consideration to be paid in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply Merger is fair to the executionholders of shares of Company Common Stock, delivery or performance from a financial point of this Agreement or to the consummation of the Transactions, including the Mergerview.
(b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC [a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to promulgated under the Offer Exchange Act (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto, the “"Schedule 14D-9”) containing, subject to Section 7.3(c"), ] [an amended Schedule 14D-9 (the -------------- "Schedule 14D-9/A")] containing the recommendation of the Board of Directors of ---------------- the Company described in Section 2.3(a)(iii) 2.02(a), and shall disseminate take such steps as are --------------- necessary to cause the Schedule 14D-9 14D-9[/A] to be disseminated to the stockholders holders of the shares of Company Common Stock as and to the extent required by Rule 14d-9 under the Exchange Actapplicable federal securities laws. Each of The Company, Parent and Merger Sub Co. shall correct promptly furnish to the Company or the Company’s legal counsel in writing upon request all any information concerning Parent and Merger Sub that may be required provided by applicable securities Laws or reasonably requested by the Company any of them for inclusion use in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under 14D-9[/A] which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respectmisleading, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 14D-9[/A] as so amended or supplemented corrected to be filed with the SEC and disseminated to the stockholders holders of the Companyshares of Company Common Stock, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to counsel shall be given an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such the Schedule 14D-9 or response14D-9[/A] prior to its being filed with the SEC, and the Company shall give reasonable will provide Parent and good faith consideration to its counsel in writing with any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event comments that the Company receives any comments from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9[/A] promptly to after receipt of any such comments and (ii) take all other actions necessary to resolve the issues raised thereincomments.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct cause its transfer agent to furnish Parent and Merger Sub Co. promptly with mailing labels containing the names and addresses of the all record holders of shares of Company Common Stock and with security position listings of shares of Company Common Stock held in stock depositories, each as of the latest practicable date and of those persons becoming record holders subsequent to such a recent date, together with copies all other available listings and computer files containing names, addresses and security position listings of all lists record holders and beneficial owners of shares of Company Common Stock. The Company shall furnish Merger Co. with such additional information, including, without limitation, updated listings and files of stockholders, mailing labels and security position listings and computer files and all such other information in the Company’s possession assistance as Parent, Merger Co. or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent their agents may reasonably request in communicating the Offer to record and beneficial holders of shares of Company Common Stock. Except Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Parent and Merger Sub and their respective affiliates, associates and Representatives Co. shall use hold in confidence the information contained in any such labels, listings and files files, shall use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminatedterminated in accordance with Section 11.01, will shall ------------- deliver to the Company all copies of of, and any extracts or summaries from, such information then in their possession or under their control promptly upon control.
(d) In connection with the Offer, the Company will furnish Parent with such information (which will be treated and held in confidence by Parent) and assistance as Parent or its Representatives may reasonably request in connection with the preparation of the CompanyOffer and communicating the Offer to the record and beneficial holders of shares of Company Common Stock.
Appears in 1 contract
Sources: Merger Agreement (Tyson Foods Inc)
Company Actions. (a) The Company hereby approves and consents to the Offer, the Merger and the other Transactions and represents that (i) the Company BoardBoard has, at a meeting duly called and held, has unanimously:
unanimously (iA) approved each of the Transaction Agreements and the Transactions, including the Offer and the Merger, (B) recommended that the holders of Common Shares accept the Offer, tender their Common Shares pursuant to the Offer and approve and adopt this Agreement and the Merger, (C) determined that each of the Transactions Transaction Agreements and the Transactions, including the Offer and the Merger, are advisable, fair to and in the best interests of the stockholders shareholders of the Company;
, (D) determined that the consideration to be paid for each Common Share in the Offer and the Merger is fair to the shareholders of the Company, and (E) declared that each of the Transaction Agreements is advisable, and (ii) adopted and approved this Agreement and Rothschild Inc. has delivered to the Transactions and declared it advisable Company Board its written opinion that the Company enter into this Agreement and consummate the Transactions;
(iii) resolved consideration to recommend that be received by the Company’s stockholders accept 's shareholders other than Robert M. Goodfriend and his immediate family and family trusts in re▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Share pursuant to the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate Merger is fair to such shareholders from a financial point of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Mergerview.
(b) On the date the Offer Documents are filed Concurrently with the SECcommencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto and including the exhibits thereto, the “"Schedule 14D-9”") containingwhich shall, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders fiduciary duties of the Company as Company's directors under applicable Law and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include this Agreement, contain the recommendation referenced in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(bclause (v) of Regulation M-A under Section 4.21 hereof (the Exchange Act (regardless of whether Item 1015(b) is applicable"Company Tender Recommendation"). The Company hereby consents to the inclusion of the Company Tender Recommendation in the Offer Documents of a description of the Company RecommendationDocuments. The Company hereby further agrees that to take all steps necessary to cause the Schedule 14D-9, when 14D-9 to be filed with the SEC and on the date first publishedto be disseminated to all holders of Common Shares, sent or given in each case as and to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact extent required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respectapplicable federal securities laws. Each of the Company, Parenton the one hand, and Merger Sub shall Parent and Acquisition Corp., on the other hand, agrees promptly to correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or and misleading in any material respect, respect and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders all holders of the CompanyCommon Shares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub Acquisition Corp. and their counsel shall be given a reasonable opportunity to review and comment on such the Schedule 14D-9 or responseand any amendment thereto before it is filed with the SEC. In addition, and the Company shall give reasonable agrees to provide Parent, Acquisition Corp. and good faith consideration to their counsel in writing with any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of comments the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-914D-9 promptly after the receipt of such comments, it and shall use its provide Parent and Acquisition Corp. with a reasonable best efforts opportunity to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve comment on the issues raised thereinproposed responses thereto.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent promptly (but in any event within five Business Days) after the date hereof, furnish or cause to furnish Parent be furnished to Acquisition Corp. mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing or computer file containing the names and addresses of the record holders of the Common Stock Shares as of the latest most recent practicable date prior to delivery of such information and of those persons becoming record holders subsequent all updates to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicableinformation, and shall furnish to Parent and Merger Sub Acquisition Corp. with such information and assistance (including periodically updated lists as Acquisition Corp. or any of stockholders, security position listings and computer files) as Parent its agents may reasonably request in communicating the Offer to the record and beneficial holders of the Common StockShares. Except Subject to applicable law or legal process and except for such steps as are necessary to disseminate the Offer Documents Documents, Parent and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives Acquisition Corp. shall use hold in confidence the information contained in any of such labelslabels and lists and the additional information referred to in the preceding sentence, listings and files shall use such information only in connection with the Offer Offer, the Merger and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreementother Transactions, and, if this Agreement shall be is terminated, will shall upon the request of the Company deliver or cause to be delivered to the Company Company, or cause to be destroyed, all copies of such information then in their its possession or under their control promptly upon the request possession of the Companyits agents or representatives.
Appears in 1 contract
Company Actions. (a) The Company hereby approves and consents to the Transactions Offer and represents that to the inclusion in the Offer Documents of the Company Board, at a meeting duly called and held, has unanimously:
Board Recommendation (i) determined that the Transactions are advisable, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions and declared it advisable that unless the Company enter into this Agreement and consummate the Transactions;
(iii) resolved to recommend that the Company’s stockholders accept the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained Board has made an Adverse Recommendation Change in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Mergercompliance with Section 6.2(b)).
(b) On As promptly as reasonably practicable on the date of filing by P▇▇▇▇▇ and Merger Sub of the Schedule TO that is part of the Offer Documents are filed with the SECDocuments, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all exhibits, amendments and supplements or amendments thereto, the “Schedule 14D-9”), which shall reflect that the Merger shall be governed by Section 251(h) containingof the DGCL, subject contain the Company Board Recommendation (unless the Company Board has made an Adverse Recommendation Change in compliance with Section 6.2(b)) and include the notice to holders of Shares of appraisal rights in connection with the Merger required by Section 262 of the DGCL. The Schedule 14D-9 shall include as an exhibit an Information Statement pursuant to Section 7.3(c), the recommendation described in Section 2.3(a)(iii14(f) and shall disseminate the Schedule 14D-9 to the stockholders of the Company as Exchange Act and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-914f-l promulgated thereunder. The Company shall cause the Schedule 14D-9 to comply be disseminated to the holders of Shares, as and to the extent required by applicable federal securities Law and Section 262 of the DGCL. Parent and Merger Sub shall promptly supply the Company in all material respects with the provisions of applicable Law. The Company shall also include writing, for inclusion in the Schedule 14D-9, all information concerning Parent and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A Merger Sub required under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference included in the Schedule 14D-9 shall not contain or reasonably requested in connection with any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respectaction contemplated by this Section 1.3(b). Each of the Company, Parent, Parent and Merger Sub shall agrees to promptly correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders holders of the CompanyShares, in each case as soon as reasonably practicable and case, as and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger M▇▇▇▇▇ Sub and their counsel shall be given a reasonable opportunity to review and comment on such the Schedule 14D-9 or response, and any amendments thereto prior to the filing thereof with the SEC and the Company shall give reasonable and good faith due consideration to any such commentsall reasonable additions, deletions or changes suggested thereto by Parent, M▇▇▇▇▇ Sub and their counsel. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of In addition, the Company Board contained in the Schedule 14D-9. In the event agrees to provide P▇▇▇▇▇, M▇▇▇▇▇ Sub and their counsel with any comments, whether written or oral, that the Company receives any comments or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-914D-9 promptly after the receipt of such comments, it and any written or oral responses thereto. Parent, M▇▇▇▇▇ Sub and their counsel shall use its be given a reasonable best efforts opportunity to (i) respond promptly review and comment upon such responses and the Company shall give due consideration to such comments all reasonable additions, deletions or changes suggested thereto by P▇▇▇▇▇, M▇▇▇▇▇ Sub and (ii) take all other actions necessary to resolve the issues raised thereintheir counsel.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct cause its transfer agent to promptly furnish Parent and Merger Sub promptly with a list of the Company’s stockholders, mailing labels labels, security position listings, any non-objecting beneficial owner lists and any available listings or computer files containing the names and addresses of the record holders of Common Stock Shares, in each case, accurate and complete (except for de minimis inaccuracies) as of the latest most recent practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to provide Parent and Merger Sub with such additional available information (including, but not limited to, periodic updates of such information) and such other assistance (including periodically updated lists of stockholdersas Parent, security position listings and computer files) as Parent Merger Sub or their agents or representatives may reasonably request in communicating the Offer to the record and beneficial holders of Common StockShares. Except for such steps as are necessary The date of the list used to disseminate determine the Persons to whom the Offer Documents and any other documents necessary the Schedule 14D-9 are first disseminated is referred to consummate as the Offer or “Stockholder List Date”. The Company Board shall set the Merger, Parent, record date for the Company’s stockholders entitled to receive the notice of appraisal rights contemplated by Section 262(d)(2) of the DGCL as the same date as the Stockholder List Date.
(d) The Company shall register (and shall instruct its transfer agent to register) the transfer of the Shares irrevocably accepted for payment by Merger Sub and their respective affiliates, associates and Representatives shall use effective immediately after the information contained in any such labels, listings and files only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminated, will deliver to the Company all copies of such information then in their possession or under their control promptly upon the request of the CompanyAcceptance Time.
Appears in 1 contract
Company Actions. The Company hereby consents to the Offer and represents that (a) The Company hereby approves and consents to the Transactions and represents that the Company Board, Board and a special committee of the Company Board formed in accordance with Section 302A.673 of the MBCA (the "Special Committee") (each at a meeting duly called and held, has unanimously:
) have (i) determined that this Agreement, the Transactions Offer and the Merger are advisable, fair to and in the best interests of the stockholders of Company and the Company;
Shareholders, (ii) adopted and approved this Agreement and the Transactions transactions contemplated hereby, including the Offer and declared it advisable that the Company enter into Merger, and, assuming the accuracy of Parent's and Purchaser's representation in Section 4.8, such approval is sufficient to render Sections 302A.671, 302A.673 and 302A.675 of the MBCA inapplicable to this Agreement and consummate the Transactions;
transactions contemplated hereby, including the Offer and the Merger, and (iii) resolved to recommend that the Company’s stockholders accept acceptance of the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance approval of this Agreement or to by the consummation of the Transactions, including the Merger.
Shareholders and (b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any supplements or amendments thereto, the “Schedule 14D-9”) containing, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc. ("SSB") has delivered to permit the Company to include Board the opinion described in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the stockholders of the Company, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 or response, and the Company shall give reasonable and good faith consideration to any such commentsSection 3.20. The Company hereby consents to the inclusion in the Offer Documents of the recommendation referred to in this Section 1.3, provided, however, that the Company Board may withdraw, modify or change such recommendation to the extent, and only to the extent and on the conditions, specified in Section 5.2(b). The Company will file with the SEC simultaneously with the filing by Parent and Purchaser of the Schedule 14D-1, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, "Schedule 14D-9") containing such recommendations of the Company Board in favor of the Offer and the Merger, subject to the rights of the Company Board set forth in Section 5.2(b). The Company represents, warrants and covenants that the Schedule 14D- 9 will comply in all material respects with the Exchange Act and any other applicable Laws and will contain (or will be amended in a timely manner so as to contain) all information which is required to be included therein in accordance with the Exchange Act and the rules and regulations thereunder and other applicable Laws, provided, however, (i) that no representation, warranty or covenant is made or will be made herein by the Company with respect to information supplied by Parent or Purchaser expressly for inclusion in, or information extracted from Parent's public SEC filings which is incorporated or included in, the Schedule 14D-9 (the "Parent SEC Information"), and (ii) no representation, warranty or covenant is made or will be made herein by Parent or Purchaser with respect to information contained in the Schedule 14D-914D-9 other than the Parent SEC Information (which Parent SEC Information will include the information furnished by Parent as contemplated by the next sentence). In the event that the The Company receives any comments from the SEC or its staff with respect to will include in the Schedule 14D-9, it shall 14D-9 information furnished by Parent in writing concerning Parent's Designees as required by Section 14(f) of the Exchange Act and Rule 14f-1 thereunder and will use its reasonable best efforts to have the Schedule 14D-9 available for inclusion in the initial mailing (iand any subsequent mailing) respond of the Offer Documents to the Shareholders. Each of the Company and Parent will promptly correct any information provided by them for use in the Schedule 14D-9 if and to such comments the extent that it becomes false or misleading in any material respect and (ii) the Company will further take all other actions lawful action necessary to resolve cause the issues raised therein.
(c) Schedule 14D-9 as so corrected to be filed promptly with the SEC and disseminated to the Shareholders, in each case as and to the extent required by applicable Law. Parent and its counsel will be given a reasonable opportunity to review the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the SEC. In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent to will promptly furnish Parent and Merger Sub promptly with mailing labels labels, security position listings and all available listings or computer files containing the names and addresses of the record holders of Common Stock Shareholders as of the latest practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall will furnish to Parent and Merger Sub such information and assistance (including periodically updated lists of stockholdersthe Shareholders, mailing labels and lists of security position listings and computer filespositions) as Parent or its agents may reasonably request in communicating the Offer to holders the record and beneficial Shareholders. Subject to the requirements of Common Stock. Except applicable Law, and except for such steps actions as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or and the Merger, ParentParent and Purchaser will, Merger Sub and will instruct each of their respective affiliatesAffiliates, associates associates, partners, employees, agents and Representatives shall use advisors to, hold in confidence the information contained in any such labels, listings lists and files files, will use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminatedis terminated in accordance with its terms, will deliver promptly to the Company all copies of such information (and any copies, compilations or extracts thereof or based thereon) then in their possession or under their control promptly upon the request of the Companycontrol.
Appears in 1 contract
Company Actions. (a) The Company hereby approves of and consents to the Transactions Offer and represents that the Company Boardits Board of Directors, at a meeting duly called and held, has unanimously:
(i) determined that each of this Agreement, the Transactions Offer and the Merger (as defined in Section 1.4) are advisable, fair to and in the best interests of the stockholders of the Company;
, (ii) adopted and approved this Agreement and the transactions contemplated hereby, including the Offer and the Merger (collectively, the "Transactions"), and such approval constitutes approval of the Offer, this Agreement, the Transactions (including the Merger), and declared it advisable the Stockholders Agreement and the transactions contemplated thereby, for purposes of Section 203 of the Delaware General Corporation Law, as amended (the "DGCL") such that Section 203 of the Company enter into DGCL will not apply to the transactions contemplated by this Agreement or the Stockholders Agreement, and consummate the Transactions;
(iii) resolved to recommend that the Company’s stockholders of the Company accept the Offer, tender their Shares thereunder to the Purchaser and approve and adopt this Agreement and the Merger. The Company represents that the actions set forth in this Section 1.2(a) and all other actions it has taken in connection therewith are sufficient to render the relevant provisions of Section 203 of the DGCL inapplicable to the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute Merger and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of other transactions contemplated by this Agreement or to and the consummation of the Transactions, including the MergerStockholders Agreement.
(b) On the date the Offer Documents are filed Concurrently with the SECcommencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto and including the exhibits thereto, the “"Schedule 14D-9”") containingwhich shall, subject to the provisions of Section 7.3(c5.4(d), contain the recommendation described referred to in clause (iii) of Section 2.3(a)(iii) and shall disseminate the 1.2(a). The Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to will comply in all material respects with the provisions of applicable Law. The Company shall also include in federal securities laws and, on the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when date filed with the SEC and on the date first published, sent or given to the stockholders of the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; providedmisleading, however, except that no such obligation representation is undertaken made by the Company with respect to information supplied furnished by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically the Purchaser for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in The Company further agrees to take all steps necessary to cause the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order filed with the SEC and to make be disseminated to holders of the statements thereinShares, in light of each case as and to the circumstances under which they were made, not misleading in any material respectextent required by applicable federal securities laws. Each of the Company, Parenton the one hand, and Merger Sub shall Parent and the Purchaser, on the other hand, agrees promptly to correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or and misleading in any material respect, respect and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders holders of the CompanyShares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on counsel shall be given the one hand, and the SEC, on the other hand. Prior opportunity to the filing of review the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation before it is filed with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9SEC. In addition, the Company shall agrees to provide Parent, Merger Sub the Purchaser and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 with any comments, whether written or responseoral, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and (ii) take all or other actions necessary to resolve the issues raised thereincommunications.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent will promptly furnish or cause to furnish Parent be furnished to the Purchaser mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing, or computer file containing the names and addresses of all recordholders of the record holders of Common Stock Shares as of the latest practicable date and of those persons becoming record holders subsequent to such a recent date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub the Purchaser with such additional information and assistance (including periodically including, but not limited to, updated lists of stockholdersholders of the Shares and their addresses, mailing labels and lists of security position listings positions) and computer files) assistance as Parent the Purchaser or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Common Stockthe Shares. Except for such steps as are necessary to disseminate the Offer Documents Documents, Parent and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives Purchaser shall use hold in confidence the information contained in any of such labelslabels and lists and the additional information referred to in the preceding sentence, listings and files will use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure AgreementOffer, and, if this Agreement shall be is terminated, will upon request of the Company deliver or cause to be delivered to the Company all copies of such information then in their its possession or under their control promptly upon the request possession of the Companyits agents or representatives.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Honeywell International Inc)
Company Actions. (a) The Company hereby approves and consents to the Transactions Offer and represents and warrants that the Company Board(i) its Board of Directors, at a meeting duly called and heldheld on September 2, 1999, has unanimously:
duly and by unanimous vote adopted resolutions approving the Offer, the Merger and this Agreement and the other transactions contemplated hereby and thereby (i) determined collectively, the "Transactions"), determining that the Transactions terms of the Offer and the Merger are advisablefair to, fair to and in the best interests of, the Company's shareholders and warrantholders and recommending acceptance of the stockholders Offer and adoption of the Merger and this Agreement by the shareholders and warrantholders of the Company;
, (ii) adopted (A) the Offer and approved Merger are "Permitted Offers" under the Rights Agreement, dated as of November 10, 1994, between the Company and Chemical Bank, as Rights Agent (the "Rights Agreement"), (B) each right to purchase Shares pursuant to the Rights Agreement ("Rights") is represented by the certificate representing the associated Share and is not exercisable or transferable apart from the associated Share, (C) there has not been a "Distribution Date" or "Shares Acquisition Date" under the Rights Agreement, (D) the Company has taken all necessary actions so that the execution of and delivery of this Agreement and the Transactions and declared it advisable that the Company enter into this Tender Agreement and consummate the Transactions;
(iii) resolved to recommend that the Company’s stockholders accept the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Merger.
(b) On the date the Offer Documents are filed with the SECOffer, the Company shall file with Merger and the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any supplements or amendments thereto, the “Schedule 14D-9”) containing, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion other Transactions will not result in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with triggering of the provisions of applicable Law. The Company shall also include Sections 11 or 13 of the Rights Agreement or the occurrence of a "Distribution Date" or "Shares Acquisition Date" under the Rights Agreement and will not result in Parent, Purchaser or any of their affiliates or associates becoming an "Acquiring Person" under the Schedule 14D-9Rights Agreement, and will obtain all necessary consents (E) upon consummation of the Company’s financial advisorMerger the former holders of the Rights will not have any claims or rights thereunder (without any necessity to redeem the Rights to effectuate the foregoing), and (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.Co. (the "Company Financial Advisor") has delivered to the Company's Board of Directors its opinion (the "Fairness Opinion") that the consideration to be received by the Company's shareholders and warrantholders is fair, from a financial point of view, to such shareholders and warrantholders as of the date of the opinion and a complete and correct signed copy of such opinion has been delivered by the Company to Parent. The Company has been authorized by the Company Financial Advisor to permit the Company to include in the Schedule 14D-9, in its entirety, inclusion of the Fairness OpinionOpinion (and, together with subject to prior review and consent by such Company Financial Advisor, a summary thereof in accordance with Item 1015(breference thereto) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit referred to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, and Merger Sub shall promptly correct any information supplied by it for inclusion or incorporation by reference in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, below and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the stockholders of the Company, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 or response, and the Company shall give reasonable and good faith consideration to any such commentsProxy Statement. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised therein.
(c) In connection with the Offer and the Merger, the Company shall instruct its transfer agent to furnish Parent and Merger Sub promptly with mailing labels containing the names and addresses of the record holders of Common Stock as of the latest practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to holders of Common Stock. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives shall use the information contained in any such labels, listings and files only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, and, if this Agreement shall be terminated, will deliver to the Company all copies of such information then in their possession or under their control promptly upon the request recommendations of the Company's Board of Directors described in this Section 1.
Appears in 1 contract
Company Actions. (a) The Company hereby approves and consents to the Offer, the Merger and the other Transactions and represents that (i) the Company BoardBoard has, at a meeting duly called and held, has unanimously:
unanimously (iA) approved each of the Transaction Agreements and the Transactions, including the Offer and the Merger, (B) recommended that the holders of Common Shares accept the Offer, tender their Common Shares pursuant to the Offer and approve and adopt this Agreement and the Merger, (C) determined that each of the Transactions Transaction Agreements and the Transactions, including the Offer and the Merger, are advisable, fair to and in the best interests of the stockholders shareholders of the Company;
, (D) determined that the consideration to be paid for each Common Share in the Offer and the Merger is fair to the shareholders of the Company, and (E) declared that each of the Transaction Agreements is advisable, and (ii) adopted and approved this Agreement and Rothschild Inc. has delivered to the Transactions and declared it advisable Company Board its written opinion that the Company enter into this Agreement and consummate the Transactions;
(iii) resolved consideration to recommend that be received by the Company’s stockholders accept 's shareholders other than Robert M. Goodfriend and his immediate family and family trusts ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇ommon Share pursuant to the Offer and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate Merger is fair to such shareholders from a financial point of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the Mergerview.
(b) On the date the Offer Documents are filed Concurrently with the SECcommencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto and including the exhibits thereto, the “Schedule "SCHEDULE 14D-9”") containingwhich shall, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders fiduciary duties of the Company as Company's directors under applicable Law and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include this Agreement, contain the recommendation referenced in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(bclause (v) of Regulation M-A under SECTION 4.21 hereof (the Exchange Act (regardless of whether Item 1015(b) is applicable"COMPANY TENDER RECOMMENDATION"). The Company hereby consents to the inclusion of the Company Tender Recommendation in the Offer Documents of a description of the Company RecommendationDocuments. The Company hereby further agrees that to take all steps necessary to cause the Schedule 14D-9, when 14D-9 to be filed with the SEC and on the date first publishedto be disseminated to all holders of Common Shares, sent or given in each case as and to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact extent required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respectapplicable federal securities laws. Each of the Company, Parenton the one hand, and Merger Sub shall Parent and Acquisition Corp., on the other hand, agrees promptly to correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or and misleading in any material respect, respect and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders all holders of the CompanyCommon Shares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company shall provide Parent, Merger Sub Acquisition Corp. and their counsel shall be given a reasonable opportunity to review and comment on such the Schedule 14D-9 or responseand any amendment thereto before it is filed with the SEC. In addition, and the Company shall give reasonable agrees to provide Parent, Acquisition Corp. and good faith consideration to their counsel in writing with any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of comments the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-914D-9 promptly after the receipt of such comments, it and shall use its provide Parent and Acquisition Corp. with a reasonable best efforts opportunity to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve comment on the issues raised thereinproposed responses thereto.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent promptly (but in any event within five Business Days) after the date hereof, furnish or cause to furnish Parent be furnished to Acquisition Corp. mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing or computer file containing the names and addresses of the record holders of the Common Stock Shares as of the latest most recent practicable date prior to delivery of such information and of those persons becoming record holders subsequent all updates to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicableinformation, and shall furnish to Parent and Merger Sub Acquisition Corp. with such information and assistance (including periodically updated lists as Acquisition Corp. or any of stockholders, security position listings and computer files) as Parent its agents may reasonably request in communicating the Offer to the record and beneficial holders of the Common StockShares. Except Subject to applicable law or legal process and except for such steps as are necessary to disseminate the Offer Documents Documents, Parent and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives Acquisition Corp. shall use hold in confidence the information contained in any of such labelslabels and lists and the additional information referred to in the preceding sentence, listings and files shall use such information only in connection with the Offer Offer, the Merger and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreementother Transactions, and, if this Agreement shall be is terminated, will shall upon the request of the Company deliver or cause to be delivered to the Company Company, or cause to be destroyed, all copies of such information then in their its possession or under their control promptly upon the request possession of the Companyits agents or representatives.
Appears in 1 contract
Sources: Acquisition Agreement (Prentice Capital Management, LP)
Company Actions. (a) The Company hereby approves represents and consents to the Transactions and represents warrants that the Company Boardboard of directors of the Company, at a meeting duly called and held, has unanimously:
(i) unanimously determined that the Transactions terms of the Offer and the Merger are advisable, fair to and in the best interests of the stockholders of the Company;
, (ii) adopted and approved this Agreement and each of the Tender Agreements and approved the Transactions and declared it advisable that the Company enter into this Agreement transactions contemplated by the Tender Agreements and consummate the Transactions;
(iii) subject to the proviso to Section 1.2(b), resolved to recommend that the Company’s stockholders holders of the Company Common Shares accept the Offer (and has consented to the inclusion of such recommendation in the Offer Documents) and tender their Company Common Shares to the Purchaser thereunder (the "Company Tender Recommendations") and approve the Merger; and
(iv) approved taking all actions so that the restrictions contained in the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of adopt this Agreement or to the consummation of the Transactions, including and the Merger.
(b) On As promptly as practicable on the date of commencement of the Offer Documents are filed with the SECOffer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto and including the exhibits thereto, the “"Schedule 14D-9”") containingwhich shall contain the Company Tender Recommendation; provided that the Company Tender Recommendation need not be made or, subject if previously made, may be withdrawn, modified or amended to Section 7.3(c)the extent that the board of directors of the Company shall have determined, in good faith after consultation with its legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Company's directors under applicable law (it being agreed and understood by the parties that any withdrawal, modification or amendment of the recommendation of the Company's board of directors shall not alter the approval of the Company's board of directors of this Agreement, the recommendation described in Tender Agreements and the Transactions for purposes of Section 2.3(a)(iii) and shall disseminate 203 of the DGCL). The Company further agrees to take all steps necessary to cause the Schedule 14D-9 to be filed with the stockholders SEC and to be disseminated to holders of Company Common Shares, together with the Company Offer Documents, in each case as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable federal securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to comply in all material respects with the provisions of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, that no such obligation is undertaken by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respectlaws. Each of the Company, Parent, the Parent and Merger Sub shall the Purchaser agrees to correct promptly correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information shall have become false or and misleading in any material respect, respects and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders holders of the CompanyCompany Common Shares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9Parent, the Company shall provide Parent, Merger Sub Purchaser and their counsel a reasonable shall be given an opportunity to review and comment on such the Schedule 14D-9 or responseand any amendment thereto before it is filed with the SEC. In addition, and the Company shall give reasonable agrees to provide the Parent, the Purchaser and good faith consideration to their counsel in writing with any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event , whether written or oral, that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-914D-9 promptly after the receipt of such comments, it shall use its reasonable best efforts to (i) respond promptly to such comments and (ii) take all other actions necessary to resolve the issues raised thereinany written or oral responses thereto.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent will as promptly as practicable furnish or cause to furnish Parent be furnished to the Purchaser mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing or computer file containing the names and addresses of the record holders of the Company Common Stock Shares as of the latest practicable date and of those persons becoming record holders subsequent to such a recent date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub the Purchaser with such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent the Purchaser or its agents may reasonably request in for the purpose of communicating the Offer to the record and beneficial holders of the Company Common StockShares. Except Subject to the same exceptions against disclosure of Evaluation Material as contemplated by the Confidentiality Agreement and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or Transactions, the Merger, Parent, Merger Sub Parent and the Purchaser and each of their respective affiliates, associates associates, partners, directors, officers, employees, agents and Representatives advisors shall use hold in confidence the information contained in any of such labels, listings labels and files lists and the additional information referred to in the preceding sentence and all extracts and summaries thereof; will use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure AgreementTransactions, and, if this Agreement shall be is terminated, will deliver or cause to be delivered to the Company Company, or destroy or cause to be destroyed (and certify such destruction to the Company), all copies of such information then in their possession or under their control promptly upon the request of the Companycontrol.
Appears in 1 contract
Company Actions. (a) The Company hereby approves of and consents to the Transactions Offer and represents that the Company BoardBoard of Directors, at a meeting duly called and held, has unanimously:
has, subject to the terms and conditions set forth herein, (i) determined that the Transactions are advisable, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions transactions contemplated hereby, including the Offer and declared it advisable that the Company enter into Merger (as defined in Section 1.4) (collectively, the "Transactions"), and such approvals constitute approval of the Offer, this Agreement and consummate the Transactions;
Merger for purposes of Sections 902 and 912 of the New York Business Corporation Law (iiithe "NYBCL") and similar provisions of any other similar state statutes that might be deemed applicable to the transactions contemplated hereby, (ii) resolved to recommend that the Company’s stockholders shareholders of the Company accept the Offer Offer, tender their Shares thereunder to the Purchaser and approve and adopt this Agreement and the MergerMerger and the Company hereby consents to the inclusion in the Offer Documents of such recommendation; and
provided, that such recommendation may be withdrawn, modified or amended if, in the good faith opinion of the Board of Directors, after consultation with independent legal counsel, such recommendation would be inconsistent with its fiduciary duties to the Company's shareholders under applicable law and (iviii) approved taking all actions so that the restrictions contained in redemption of the Company’s certificate of incorporation, the restrictions on “business combinations” set forth in the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply to the execution, delivery or performance of this Agreement or Rights prior to the consummation of the TransactionsOffer according to the provisions of the Rights Agreement. The Company represents that the actions set forth in this Section 1.2(a) and all other actions it has taken in connection therewith are, including assuming the accuracy of, and in reliance upon, the information received in writing from Parent as to the ownership of Shares by Parent and their affiliates, sufficient to render the relevant provisions of Section 912 of the NYBCL inapplicable to the Offer and the Merger. The Company further represents that ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("Goldman") has delivered to the Board of Directors of the Company the Fairness Opinion as described in Section 3.18.
(b) On the date the Offer Documents are filed Concurrently with the SECcommencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, together with any all amendments and supplements or amendments thereto and including the exhibits thereto, the “"Schedule 14D-9”") containingwhich shall, subject to Section 7.3(c), the recommendation described in Section 2.3(a)(iii) and shall disseminate the Schedule 14D-9 to the stockholders fiduciary duties of the Company as Company's directors under applicable law and to the extent required by Rule 14d-9 under provisions of this Agreement, contain the Exchange Act. Each recommendation referred to in clause (ii) of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9Section 1.2(a) hereof. The Company shall cause the Schedule 14D-9 to will comply in all material respects with the provisions of applicable Law. The Company shall also include in federal securities laws and, on the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when date filed with the SEC and on the date first published, sent or given to the stockholders of the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; providedmisleading, however, except that no such obligation representation is undertaken made by the Company with respect to information supplied by Parent or Merger Sub or any of their officers, directors, representatives, agents or employees the Purchaser in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9Offer Documents. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in The Company further agrees to take all steps necessary to cause the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order filed with the SEC and to make the statements thereinbe disseminated to holders of Shares, in light of each case as and to the circumstances under which they were made, not misleading in any material respectextent required by applicable federal securities laws. Each of the Company, Parenton the one hand, and Merger Sub shall Parent and the Purchaser, on the other hand, agrees promptly to correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information it shall have become false or and misleading in any material respect, respect and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the stockholders holders of the CompanyShares, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company Parent and its counsel shall promptly notify Parent upon be given the receipt of any comments from opportunity to review the initial Schedule 14D-9 before it is filed with the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9In addition, the Company shall agrees to provide Parent, Merger Sub the Purchaser and their counsel a reasonable opportunity to review and comment on such Schedule 14D-9 in writing with any comments or response, and the Company shall give reasonable and good faith consideration to any such comments. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board contained in the Schedule 14D-9. In the event other communications that the Company receives any comments or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and or other communications. Notwithstanding anything to the contrary contained herein, if the members of the Board of Directors of the Company determine in the exercise of their fiduciary duties to withdraw, modify or amend the recommendation referred to in clause (ii) take all other actions necessary to resolve the issues raised thereinof Section 1.2(a) hereof, such withdrawal, modification or amendment shall not constitute a breach of this Agreement.
(c) In connection with the Offer and the MergerOffer, the Company shall instruct its transfer agent will promptly furnish or cause to furnish Parent be furnished to the Purchaser mailing labels, security position listings and Merger Sub promptly with mailing labels any available listing or computer file containing the names and addresses of the record holders of Common Stock the Shares as of the latest practicable date and of those persons becoming record holders subsequent to such a recent date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub the Purchaser with such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent the Purchaser or its agents may reasonably request in communicating the Offer to holders the shareholders of Common Stockthe Company. Except for such steps as are necessary to disseminate the Offer Documents Documents, Parent and any other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and their respective affiliates, associates and Representatives Purchaser shall use hold in confidence the information contained in any of such labelslabels and lists and the additional information referred to in the preceding sentence, listings and files will use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure AgreementOffer, and, if this Agreement shall be is terminated, will upon request of the Company deliver or cause to be delivered to the Company all copies of such information then in their its possession or under their control promptly upon the request possession of its agents or representatives.
(d) The Company shall amend the Rights Agreement as set forth in Annex B hereto, which amendment will be effective as of the Companydate hereof.
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Sources: Merger Agreement (Handy & Harman)
Company Actions. (a) The Company hereby approves of and consents to the Transactions Offer and represents that the Company BoardBoard of Directors of the Company, at a meeting duly called and held, has unanimously:
duly adopted resolutions (i) determined approving this Agreement; (ii) approving the Offer and the Merger (and effecting the other actions referred to in Sections 5.24 and 5.25); (iii) determining that the Transactions terms of the Offer and the Merger are advisablefair to, fair to and in the best interests of the stockholders of the Company;
(ii) adopted and approved this Agreement and the Transactions and declared it advisable that of, the Company enter into this Agreement and consummate the Transactions;
its stockholders; (iiiiv) resolved to recommend recommending that the Company’s stockholders accept the Offer, tender their shares pursuant to the Offer and approve the MergerMerger and this Agreement (if required) (the “Recommendations”); and
(iv) approved taking all actions so provided, however, that the restrictions contained Board of Directors of the Company may withdraw, modify or amend the Recommendations as provided by Section 6.1(c); and (v) approving the acquisition of shares of Company Common Stock by Merger Sub pursuant to the Offer and the other transactions contemplated by this Agreement. The Company hereby consents to the inclusion in the Offer Documents of the Recommendations and the fairness opinion of A▇▇▇▇ & Company (the “Company Financial Advisor”) in the Schedule 14D-9 (as defined below) and, in each case, as necessary, the proxy statement (including the form of proxies) or information statement relating to the vote of the Company’s certificate of incorporationstockholders with respect to this Agreement (as amended, supplemented or modified, the restrictions on “business combinations” set forth in Company Proxy Statement”). The Company has been advised by each of its directors and executive officers that, as of the Delaware Takeover Statute and the restrictions on “significant business transactions” set forth in the Washington Takeover Statute will not apply date hereof, each such person intends to tender all shares of Company Common Stock owned by such person pursuant to the execution, delivery or performance of this Agreement or to the consummation of the Transactions, including the MergerOffer.
(b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, and the documents included therein, together with any supplements or amendments thereto, the “Schedule 14D-9”) containing, subject to Section 7.3(c), containing the recommendation described in Section 2.3(a)(iii) Recommendations and shall disseminate mail the Schedule 14D-9 to the stockholders of the Company as and to the extent required by Rule 14d-9 under the Exchange Act. Each of Parent and Merger Sub shall promptly furnish to the Company or the Company’s legal counsel in writing upon request all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. The Company shall cause agrees that the Schedule 14D-9 to shall comply in all material respects with the provisions requirements of applicable Law. The Company shall also include in the Schedule 14D-9, and will obtain all necessary consents of the Company’s financial advisor, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., to permit the Company to include in the Schedule 14D-9, in its entirety, the Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the Exchange Act (regardless of whether Item 1015(b) is applicable). The Company hereby consents to and, on the inclusion in the Offer Documents of a description of the Company Recommendation. The Company hereby further agrees that the Schedule 14D-9, when date filed with the SEC and on the date first published, sent or given to the stockholders of the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; providedmisleading, however, except that no such obligation covenant is undertaken made by the Company with respect to information supplied by Parent Buyer or Merger Sub or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9. Parent and Merger Sub hereby agree that the information provided by or on behalf of them in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect. Each of the Company, Parent, Buyer and Merger Sub shall agrees promptly to correct any information supplied provided by it for inclusion or incorporation by reference use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 14D-9, as so amended or supplemented corrected, to be filed with the SEC and to be disseminated to the stockholders of the Company’s stockholders, in each case as soon as reasonably practicable and as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly notify Parent upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Schedule 14D-9, and shall promptly provide Parent with copies of all correspondence and summaries of all material oral communications between the Company Buyer and its Representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including any amendment or supplement thereto) that does not contain or relate to an Acquisition Proposal or a Change of Recommendation with the SEC or mailing thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company counsel shall provide Parent, Merger Sub and their counsel a be given reasonable opportunity to review and comment on such upon the Schedule 14D-9 prior to its filing with the SEC or response, and dissemination to stockholders of the Company shall give reasonable and good faith consideration to any such commentsCompany. The Company hereby consents agrees to the inclusion in the Offer Documents of the recommendation of provide Buyer and its counsel any comments the Company Board contained in the Schedule 14D-9. In the event that the Company receives any comments or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9, it shall use its reasonable best efforts to (i) respond 14D-9 promptly to after the receipt of such comments and (ii) take all other actions necessary to resolve the issues raised thereincomments.
(c) In connection with the Offer and the Merger, the Company shall instruct cause its transfer agent to furnish Parent and Merger Sub promptly with mailing labels containing the names and addresses of the record holders of Company Common Stock as of the latest practicable a recent date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of shares of Company Common Stock, in each case as of the latest date practicable, and shall furnish to Parent and Merger Sub such information and assistance (including periodically updated lists of stockholders, security position listings and computer files) as Parent Buyer may reasonably request in communicating the Offer to holders the Company’s stockholders. Subject to the requirements of Common Stock. Except applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Buyer and Merger Sub and their respective affiliates, associates and Representatives agents shall use hold in confidence the information contained in any such labels, listings and files files, will use such information only in connection with the Offer and the Merger, shall treat such information and materials in accordance with the terms and conditions of the Non-Disclosure Agreement, Merger and, if this Agreement shall be terminated, will, upon request, deliver, and will deliver use their reasonable efforts to cause their agents to deliver, to the Company all copies of and any extracts or summaries from such information then in their possession or under their control promptly upon the request of the Companycontrol.
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