Company Meeting. (a) The Company agrees to give notice of an amended notice of meeting for the Company Meeting, setting the date for such meeting at September 26, 2018, preserving the existing record date and amending the Company Meeting to be a special meeting to consider the Approval Resolution, and to convene and conduct such Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018), in accordance with the Company’s constating documents and applicable Laws. The Company agrees that it shall not adjourn, postpone, delay or cancel the Company Meeting without the prior written consent of the Purchaser except as required to constitute a quorum necessary to conduct the business of the Company Meeting (in which case the meeting shall be adjourned and not cancelled). (b) Unless otherwise agreed to in writing by the Purchaser or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority, the Company shall take all steps reasonably necessary to hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a). (c) The Company shall not propose or submit for consideration at the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. (d) The Company shall solicit proxies of the Company Shareholders in favour of the Investment and all matters to be approved by the Company Shareholders as set out in the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment. (e) The Company shall give notice to the Purchaser of the Company Meeting and allow the Purchaser’s representatives and legal counsel to attend the Company Meeting. (f) The Company shall advise the Purchaser as reasonably requested, and on a daily basis on each of the last seven Business Days prior to the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of such meeting and all matters to be considered at such meeting. (g) The Company shall advise the Purchaser of any written communication from any Company Shareholder in opposition to the Investment. (h) The Company shall not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser. (i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser. (j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution. (k) The business of the Company Meeting will include the election of the following directors: (i) Xxxxx Xxxxxx; (ii) Xxxx Xxxx; (iii) Xxxxx Xxxxxxxxx; (iv) Xxxxxxx Xxxxxxxx; (v) Xxxxx Xxxxx; (vi) Xxxx Xxxxxxxxx; and (vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed: (A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement; (B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and (C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiaries.
Appears in 4 contracts
Samples: Subscription Agreement (Canopy Growth Corp), Subscription Agreement (Canopy Growth Corp), Subscription Agreement (Constellation Brands, Inc.)
Company Meeting. The Company shall:
(a) The Company agrees to give notice of an amended notice of meeting for the Company Meeting, setting the date for such meeting at September 26, 2018, preserving the existing record date convene and amending conduct the Company Meeting to be a special meeting to consider the Approval Resolution, and to convene and conduct such Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018), in accordance with the Interim Order, the Company’s constating documents and applicable Laws. The Company agrees that it shall Laws as promptly as practicable, but in any event not later than June 30, 2019, and not adjourn, postpone, delay postpone or cancel (or propose the adjournment, postponement or cancellation of) the Company Meeting without the prior written consent of the Purchaser Buyer, except as required to constitute a or permitted under Section 6.04 or Section 7.04(e) or as required for quorum necessary to conduct the business of purposes (in which case, the Company Meeting (in which case the meeting shall be adjourned and not cancelled).) or as required by applicable Laws or a Governmental Entity;
(b) Unless otherwise agreed subject to the terms of this Agreement, use its commercially reasonable efforts to solicit proxies in writing favour of the approval of the Arrangement Resolution and against any resolution submitted by any Person that is inconsistent with the Arrangement Resolution and the completion of any of the transactions contemplated by this Agreement, including, at the Company’s discretion or if so requested by the Purchaser or Buyer, acting reasonably, using dealer and proxy solicitation services and co-operating with any Persons engaged by the Buyer to solicit proxies in favour of the Arrangement Resolution;
(c) as soon as reasonably practicable following the execution of this Agreement is terminated and in accordance with its terms or except as required by applicable Law or by a Governmental Authorityany event not later than May 30, 2019, the Company shall take all steps reasonably necessary will convene a meeting of the Company Board to hold approve the Company Circular;
(d) provide the Buyer with copies of or access to information regarding the Company Meeting generated by any dealer or proxy solicitation services firm, as requested from time to time by the Buyer;
(e) consult with the Buyer in fixing the date of the Company Meeting and the record date of the Company Meeting, give notice to cause the Approval Resolution Buyer of the Company Meeting and allow the Buyer’s representatives and legal counsel to attend the Company Meeting;
(f) at the reasonable request of the Buyer from time to time, provide the Buyer with a list (in both written and electronic form) of the: (i) registered Company Shareholders, together with their addresses and respective holdings of Company Shares; (ii) names, addresses and holdings of all Persons owning securities which entitle the holder to subscribe for or otherwise acquire Company Shares; (iii) the names, addresses and holdings of all Persons having rights issued by the Company to acquire Company Shares (including holders of Company Options and Company Warrants) and (iii) participants and book-based nominee registrants such as CDS & Co., CEDE & Co. and DTC, and non-objecting beneficial owners of Company Shares and other holders of Company securities, together with their addresses and respective holdings of Company Shares, all as of a date that is as close as reasonably practicable prior to the date of delivery of such lists and shall from time to time require that its registrar and transfer agent furnish the Buyer with such additional information, including updated or additional lists of Company Shareholders and lists of securities positions and other assistance as the Buyer may reasonably request;
(g) promptly advise the Buyer, at such times as the Buyer may reasonably request, including, as applicable, on a daily basis on each of the last 10 Business Days prior to the date of the Company Meeting, as to the aggregate tally of proxies received by the Company in respect of the Arrangement Resolution;
(h) promptly advise the Buyer of any material communication (written or oral) from or claims brought by (or threatened to be voted on brought by) any Person in opposition to the Arrangement and approved at such meeting and shall not propose to adjourn, delay any purported exercise or postpone such meeting other than as contemplated withdrawal of Dissent Rights by Section 5.6(a).Company Shareholders;
(ci) The not change the record date for the Company shall Shareholders entitled to vote at the Company Meeting in connection with any adjournment or postponement of the Company Meeting unless required by applicable Laws;
(j) not make any payment or settlement offer, or agree to any payment or settlement with respect to Dissent Rights, without the prior written consent of the Buyer; and
(k) not propose or submit for consideration at the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment Arrangement without the PurchaserBuyer’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
(d) The Company shall solicit proxies of the Company Shareholders in favour of the Investment and all matters to be approved by the Company Shareholders as set out in the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.
(e) The Company shall give notice to the Purchaser of the Company Meeting and allow the Purchaser’s representatives and legal counsel to attend the Company Meeting.
(f) The Company shall advise the Purchaser as reasonably requested, and on a daily basis on each of the last seven Business Days prior to the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of such meeting and all matters to be considered at such meeting.
(g) The Company shall advise the Purchaser of any written communication from any Company Shareholder in opposition to the Investment.
(h) The Company shall not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser.
(i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiaries.
Appears in 2 contracts
Samples: Arrangement Agreement, Arrangement Agreement
Company Meeting. The Company, acting through the Company Board, shall take all actions in accordance with applicable Law, its certificate of incorporation and by-laws and (aif applicable) The Company agrees NASDAQ Marketplace Rules to promptly and duly call, give notice of, convene and hold as promptly as practicable a meeting of an amended notice the holders of meeting shares of Company Common Stock (the “Company Meeting”) for the purpose of considering and voting upon the Company Voting Proposal. Unless this Agreement is terminated in accordance with Article IX, the obligation of the Company to convene and hold the Company Meeting will not be limited or otherwise affected by a Change in Company Recommendation or by the commencement, public proposal, public disclosure or communication to the Company of any Takeover Proposal. Except as otherwise provided in Section 7.2, (i) the Company Board will recommend to the stockholders of the Company the adoption of the Company Voting Proposal and include such recommendation in the Proxy Statement and (ii) the Company Board shall not withhold, withdraw, qualify or modify, or publicly propose or resolve to withhold, withdraw, qualify or modify in a manner adverse to Parent, the recommendation of the Company Board that the Company’s stockholders vote in favor of the Company Voting Proposal. Unless such recommendation shall have been withdrawn or modified in accordance with Section 7.2 (but without affecting in any manner the Company’s obligations pursuant to Section 7.3), the Company shall use commercially reasonable efforts to solicit from its stockholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the vote or consent of the stockholders of the Company required by Delaware Law and, if applicable, the NASDAQ Marketplace Rules, to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn the Company Meeting, setting but only to the date extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders or, if as of the time for such meeting at September 26, 2018, preserving the existing record date and amending which the Company Meeting to be a special meeting to consider is originally scheduled (as set forth in the Approval Resolution, and to convene and conduct such Proxy Statement) there are insufficient shares of Company Meeting as promptly as practicable Common Stock represented (and, either in any event, on person or before September 26, 2018), in accordance with the Company’s constating documents and applicable Laws. The Company agrees that it shall not adjourn, postpone, delay or cancel the Company Meeting without the prior written consent of the Purchaser except as required by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting (in which case the meeting shall be adjourned and not cancelled).
(b) Unless otherwise agreed to in writing by the Purchaser or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority, the Company shall take all steps reasonably necessary to hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a).
(c) The Company shall not propose or submit for consideration at the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
(d) The Company shall solicit proxies of the Company Shareholders in favour of the Investment and all matters to be approved by the Company Shareholders as set out in the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.
(e) The Company shall give notice to the Purchaser of the Company Meeting and allow the Purchaser’s representatives and legal counsel to attend the Company Meeting.
(f) The Company shall advise the Purchaser as reasonably requested, and on a daily basis on each of the last seven Business Days prior to the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of such meeting and all matters to be considered at such meeting.
(g) The Company shall advise the Purchaser of any written communication from any Company Shareholder in opposition to the Investment.
(h) The Company shall not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser.
(i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Netopia Inc), Merger Agreement (Netopia Inc)
Company Meeting. (a) The Promptly after the date the Proxy Statement is cleared by the SEC, the Company agrees shall take all action necessary in accordance with the MGCL and the Company Articles of Incorporation and Company Bylaws and the rules of the NYSE to call, give notice of an amended notice of meeting for the Company Meetingof, setting the date for such meeting at September 26, 2018, preserving the existing record date and amending the Company Meeting to be a special meeting to consider the Approval Resolution, and to convene and conduct such hold the Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018practicable. Subject to Section 6.1(c), the Company shall use its commercially reasonable efforts to solicit from the holders of Company Common Stock proxies in accordance with favor of the adoption and approval of this Agreement and the approval of the Company Merger and will take all other action necessary or advisable (including the adjournment of the Company Meeting) to secure the vote or consent of its stockholders required by the rules of the NYSE and MGCL to obtain such approvals and the Company Stockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, the Company (i) shall adjourn or postpone the Company Meeting to the extent necessary, including by setting one or more additional record dates as required under the MGCL, to ensure that any necessary supplement or amendment to the Proxy Statement is provided to the Company’s constating documents stockholders sufficiently in advance of a vote on this Agreement and the Company Merger to insure that such vote occurs on the basis of full and complete information as required under applicable Laws. The law or (ii) shall (unless Parent otherwise consents in writing or if prohibited by applicable law) adjourn the Company agrees that it shall Meeting, including by setting one or more additional record dates as required under the MGCL, for a period not adjournto exceed 30 days, postpone, delay or cancel if as of the time for which the Company Meeting without is originally scheduled (as set forth in the prior written consent Proxy Statement) or subsequently rescheduled or reconvened, there are insufficient shares of the Purchaser except as required Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting. The Company shall ensure that the Company Meeting (is called, noticed, convened, held and conducted, and that all proxies solicited by the Company in which case connection with the meeting Company Meeting are solicited, in compliance with the MGCL, the Company Articles of Incorporation and Company Bylaws, the rules of the NYSE and all other applicable legal requirements. The Company’s obligation to call, give notice of, convene and hold the Company Meeting in accordance with this Section 6.4(a) shall not be adjourned limited or affected by the commencement, disclosure, announcement or submission to Company of any Acquisition Proposal, or by any withdrawal, amendment or modification of the recommendation of the Company Board with respect to this Agreement and not cancelled)the Company Merger.
(b) Unless otherwise agreed Subject to in writing by the Purchaser or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority, the Company shall take all steps reasonably necessary to hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a).
(c) The Company shall not propose or submit for consideration at the Company Meeting any business other than 6.1(c): (i) the election Company Board shall recommend that the holders of directorsthe Company Common Stock vote in favor of and approve this Agreement, the Company Merger and the other transactions contemplated by this Agreement at the Company Meeting; and (ii) the appointment of auditors and (iii) Proxy Statement shall include a statement to the Investment without effect that the Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
(d) The Company shall solicit proxies Board has unanimously recommended that the holders of the Company Shareholders Common Stock vote in favour favor of the Investment and all matters to be approved by approve this Agreement, the Company Shareholders as set out in Merger and the Approval Resolution, and take all other actions reasonably requested transactions contemplated by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.
(e) The Company shall give notice to the Purchaser of the Company Meeting and allow the Purchaser’s representatives and legal counsel to attend this Agreement at the Company Meeting.
(f) The Company shall advise the Purchaser as reasonably requested, and on a daily basis on each of the last seven Business Days prior to the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of such meeting and all matters to be considered at such meeting.
(g) The Company shall advise the Purchaser of any written communication from any Company Shareholder in opposition to the Investment.
(h) The Company shall not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser.
(i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Trustreet Properties Inc), Merger Agreement (Trustreet Properties Inc)
Company Meeting. (a) The Company, acting through the Company agrees Board, shall take all actions in accordance with applicable law, its Certificate of Incorporation and By-laws and Nasdaq rules to promptly and duly call, give notice of, convene and hold as promptly as practicable, and in any event within forty five (45) days after the declaration of an amended notice effectiveness of meeting the Registration Statement, the Company Meeting for the purpose of considering and voting upon the Company MeetingVoting Proposal. Subject to the provisions of Section 6.1, setting to the date for fullest extent permitted by applicable law, (i) the Company Board shall recommend approval and adoption of the Company Voting Proposal by the stockholders of the Company and include such meeting at September 26recommendation in the Proxy Statement/Prospectus, 2018and (ii) neither the Company Board nor any committee thereof shall withdraw or modify, preserving or propose or resolve to withdraw or modify in a manner adverse to the existing record date Buyer, the recommendation of the Company Board that the Company’s stockholders vote in favor of the Company Voting Proposal. Subject to the provisions of Section 6.1(b), the Company shall take all action that is both reasonable and amending lawful to solicit from its stockholders proxies in favor of the Company Voting Proposal and shall take all other action necessary or advisable to secure the vote or consent of the stockholders of the Company required by Nasdaq rules of or the DGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with the Buyer, may adjourn or postpone the Company Meeting to be a special meeting the extent necessary to consider ensure that any required supplement or amendment to the Approval Resolution, and Proxy Statement/Prospectus is provided to convene and conduct such Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018), in accordance with the Company’s constating documents and applicable Laws. The Company agrees that it shall not adjournstockholders or, postpone, delay or cancel if as of the time for which the Company Meeting without is originally scheduled (as set forth in the prior written consent Proxy Statement/Prospectus) there are insufficient shares of the Purchaser except as required Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting (in which case the meeting shall be adjourned and not cancelled)Meeting.
(b) Unless otherwise agreed Subject to in writing by the Purchaser or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authorityprovisions of Section 8.1(h), the Company shall take all steps reasonably necessary to call, give notice of, convene and hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting in accordance with this Section 6.5 and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a).
(c) The Company shall not propose or submit for consideration at the Company Meeting any business other than Voting Proposal to its stockholders for the purpose of acting upon such proposal whether or not (i) the election Company Board at any time subsequent to the date hereof determines, in the manner permitted by Section 6.1(b) that the Company Voting Proposal is no longer advisable or recommends that the stockholders of directors; the Company reject such proposal, or (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consentany actual, such consent not to be unreasonably withheldpotential or purported Acquisition Proposal or Superior Proposal has been commenced, conditioned disclosed, announced or delayed.
(d) The Company shall solicit proxies of the Company Shareholders in favour of the Investment and all matters to be approved by the Company Shareholders as set out in the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.
(e) The Company shall give notice submitted to the Purchaser of the Company Meeting and allow the Purchaser’s representatives and legal counsel to attend the Company MeetingCompany.
(f) The Company shall advise the Purchaser as reasonably requested, and on a daily basis on each of the last seven Business Days prior to the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of such meeting and all matters to be considered at such meeting.
(g) The Company shall advise the Purchaser of any written communication from any Company Shareholder in opposition to the Investment.
(h) The Company shall not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser.
(i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Skyworks Solutions, Inc.), Agreement and Plan of Merger (Advanced Analogic Technologies Inc)
Company Meeting. Subject to the terms of this Agreement and (except in respect of Section 2.3(b)) receipt of the Interim Order, the Company shall:
(a) The convene and conduct the Company agrees Meeting in accordance with its constating documents, the Interim Order and applicable Laws, as soon as reasonably practicable, and in any event on or before November 1, 2022, subject to adjournment to the extent required pursuant to Section 2.3;
(b) in consultation with the Purchaser, fix and publish a record date for the purposes of determining the Company Shareholders entitled to receive notice of and vote at the Company Meeting and give notice to the Purchaser of an amended notice of meeting for the Company Meeting, setting ;
(c) allow the date for such meeting at September 26, 2018, preserving the existing record date Purchaser’s representatives and amending legal counsel to attend the Company Meeting to be a special meeting to consider the Approval Resolution, and to convene and conduct such Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018including by virtual means), in accordance with the Company’s constating documents and applicable Laws. The Company agrees that it shall ;
(d) not adjourn, postpone, delay postpone or cancel (or propose or permit the adjournment, postponement or cancellation of) the Company Meeting without the Purchaser’s prior written consent of the Purchaser except consent, except:
(i) as required to constitute a for quorum necessary to conduct the business of the Company Meeting purposes (in which case the meeting shall be adjourned and not cancelled).
(b) Unless otherwise agreed to in writing , by the Purchaser or this Agreement is terminated in accordance with its terms or except as required Law, by applicable Law a Governmental Entity or by a Governmental Authority, valid Company Shareholder action (which action is not solicited or proposed by the Company shall take all steps reasonably necessary to hold or the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(aBoard).;
(cii) The Company shall as expressly permitted under Section 5.4(h);
(iii) as requested by the Purchaser, an adjournment of not propose or submit more than ten Business Days in the aggregate for consideration at the purposes of attempting to solicit proxies to obtain the Company Meeting any business other than Shareholder Approval; and
(iv) in the event that the Company or the Purchaser reasonably determines that (i) the election Circular or the Schedule 13E-3 contains any untrue statement of directors; material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading or (ii) such adjournment is necessary or appropriate to address material comments of any Securities Authority on the appointment Company Circular or the Schedule 13E-3; provided that the Company and the Purchaser agree to cooperate with one another to make any necessary modifications to the Company Circular or the Schedule 13E-3 and/or address the comments of auditors and (iii) the Investment without the Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.applicable Securities Authority as expeditiously as reasonably practicable;
(de) The unless the Company shall Board has made the Company Change in Recommendation in accordance with the applicable provisions of this Agreement, use commercially reasonable efforts to solicit proxies of the Company Shareholders in favour of the Investment Arrangement Resolution and all matters to be approved against any resolution submitted by any Company Shareholder that is inconsistent with the Company Shareholders as set out in Arrangement Resolution and the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the approval completion of any of the Approval Resolution transactions contemplated by the Company Shareholdersthis Agreement, including, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged requested by the Purchaser, promptly reaffirm the Company Board Recommendation by press release, and at the expense of the Purchaser, use the services of proxy solicitation firms mutually agreed to by the Purchaser and the Company to solicit proxies in favour of the approval of the Approval Arrangement Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.
(e) The Company shall give notice to the Purchaser of the Company Meeting and allow the Purchaser’s representatives and legal counsel to attend the Company Meeting.;
(f) The provide the Purchaser with copies of and access to information regarding the Company shall Meeting generated by any proxy solicitation services firm engaged by the Company, as requested from time to time by the Purchaser;
(g) promptly advise the Purchaser as frequently as the Purchaser may reasonably requestedrequest, and at least on a daily basis on each of the last seven ten Business Days prior to the date of the Company Meeting, as to the aggregate tally of the proxies and votes received by the Company in respect of such meeting the Arrangement Resolution and all matters any other information relating to be considered at such meeting.the proxies or Company Meeting reasonably requested by the Purchaser including if any beneficial Company Shareholder appoints itself as a proxy holder for the purposes of the Company Meeting;
(gh) The Company shall promptly advise the Purchaser of any written or oral communication from any Company Shareholder in opposition to the Investment.Arrangement, written notice of dissent or purported exercise by any Company Shareholder of Dissent Rights received by the Company in relation to the Arrangement and any withdrawal of Dissent Rights received by the Company and any written communications sent by or on behalf of the Company to any Company Shareholder exercising or purporting to exercise Dissent Rights in relation to the Arrangement;
(hi) The not make any payment or settlement offer, or agree to any payment or settlement prior to the Effective Time with respect to Dissent Rights without the prior written consent of the Purchaser;
(j) provide the Purchaser with an opportunity to review and comment on any written communication sent by or on behalf of the Company shall to any Company Shareholder exercising or purporting to exercise Dissent Rights and not make any payment or settlement offer, or agree to any payment or settlement prior to the Effective Time with respect to Dissent Rights without the prior written consent of the Purchaser;
(k) not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including Meeting in connection with any adjournment or postponement of the Company Meeting, Meeting unless required by Law or the Interim Order, or with the Purchaser’s written consent;
(l) not, without the prior written consent of the Purchaser.
(i) The Company shall not , waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx XxxxxxMeeting;
(iim) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxxnotify the Purchaser if any beneficial holders of Company Shares seek to become registered Company Shareholders by withdrawing their shares from the book-based system; and
(viin) an individual at the reasonable request of the Purchaser from time to time, promptly provide the Purchaser with a list (in both written and electronic form) of: (i) the “Seventh Nominee”registered Company Shareholders, together with their addresses and respective holdings of Company Shares; (ii) selected on the following basis between names and addresses (to the date hereof extent in the Company’s possession or otherwise reasonably obtainable by the Company) and holdings of all Persons having rights issued by the Closing Date Company to hold office until acquire Company Shares; and (iii) participants in book-based systems and non-objecting beneficial owners of Company Shares, together with their addresses and respective holdings of Company Shares. The Company shall from time to time require that its registrar and transfer agent furnish the next annual meeting of shareholders Purchaser with such additional information, including updated or additional lists of the Company or until his or her successor is elected or appointed:
(A) the Company Shareholders and lists of holdings and other assistance as the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiariesmay reasonably request.
Appears in 2 contracts
Samples: Arrangement Agreement (Turquoise Hill Resources Ltd.), Arrangement Agreement (Rio Tinto PLC)
Company Meeting. (a) The Company agrees to give notice of an amended notice of meeting for take, in accordance with applicable Law and the Company MeetingLLC Agreement, setting all action necessary to convene as soon as reasonably practicable after the date for SEC staff confirms that it has no further comments on the Proxy Statement or that the Company may commence mailing the Proxy Statement (and will in any event use commercially reasonable efforts to convene such meeting at September 26no later than forty-five (45) calendar days after the SEC staff confirms that it has no further comments on the Proxy Statement or that the Company may commence mailing the Proxy Statement), 2018, preserving the existing record date and amending the Company Meeting to be a special meeting to consider the Approval Resolution, and to convene obtain the Company Shareholder Approval. Subject to Section 6.2, the Company Board shall at all times prior to and conduct during such special meeting, including in the Proxy Statement, make the Company Meeting as promptly as practicable (andRecommendation and shall use its reasonable best efforts to solicit the Company Shareholder Approval. Without limiting the generality of the foregoing, in any event, on or before September 26, 2018), unless this Agreement has terminated in accordance with its terms, this Agreement and the Merger shall be submitted to the Company’s constating documents and applicable LawsShareholders at the Company Meeting whether or not (i) the Company Board shall have effected a Change of Recommendation or (ii) any Acquisition Proposal shall have been publicly proposed or announced or otherwise submitted to the Company or any of its Representatives. The Company agrees that it shall not adjournnot, postpone, delay or cancel the Company Meeting without the prior written consent of Parent, adjourn or postpone the Purchaser except Company Meeting; provided, that the Company may, without the prior written consent of Parent, adjourn or postpone the Company Meeting (A) if, as required of the time for which the Company Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting Meeting, (in which case B) after consultation with Parent, if the meeting shall be adjourned and not cancelled).
(b) Unless otherwise agreed failure to in writing by the Purchaser adjourn or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority, the Company shall take all steps reasonably necessary to hold postpone the Company Meeting and to cause the Approval Resolution would reasonably be expected to be voted on and approved at such meeting and shall a violation of applicable Law for the distribution of any required supplement or amendment to the Proxy Statement or (C) after consultation with Parent, for a single period not propose to exceed ten (10) Business Days, to solicit additional proxies if necessary to obtain the Company Shareholder Approval. Parent may require the Company to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a).
(c) The Company shall not propose or submit for consideration at the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, such consent once for a period not to be unreasonably withheld, conditioned or delayed.
exceed thirty (d30) The Company shall solicit proxies of the Company Shareholders in favour of the Investment and all matters to be approved by the Company Shareholders as set out in the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.
calendar days (e) The Company shall give notice but prior to the Purchaser of the Company Meeting and allow the Purchaser’s representatives and legal counsel to attend the Company Meeting.
date that is five (f5) The Company shall advise the Purchaser as reasonably requested, and on a daily basis on each of the last seven Business Days prior to the Company Meeting, as End Date) to solicit additional proxies necessary to obtain the aggregate tally of the proxies and votes received in respect of such meeting and all matters to be considered at such meeting.
(g) The Company shall advise the Purchaser of any written communication from any Company Shareholder in opposition to Approval. Once the Investment.
(h) The Company shall not change the has established a record date for the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser.
(i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders change such record date or establish a different record date for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser Parent, unless required to do so by applicable Law or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then LLC Agreement or in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business connection with a postponement or adjournment of the Company Meeting will include permitted by this Section 6.4. Without the election prior written consent of Parent, the Company Shareholder Approval shall be the only matter that the Company shall propose to be acted on by the Shareholders at the Company Meeting (other than other matters of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual type customarily brought before a meeting of shareholders in connection with the approval of a merger agreement or the Company or until his or her successor is elected or appointed:transactions contemplated thereby).
(Ab) the The Company and the Purchaser shall agrees to use commercially reasonable efforts (i) to identify provide Parent periodic updates concerning proxy solicitation results on a potential candidate who is Independent for nomination timely basis and (ii) to give written notice to Parent one Business Day prior to the Board within 45 days following Company Meeting and on the date of this Agreement;
(B) if day of, but prior to, the Company and the Purchaser have not identified a mutually agreeable candidate for nomination Meeting, indicating whether as of such date, to the BoardCompany’s Knowledge, sufficient proxies representing the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its SubsidiariesCompany Shareholder Approval has been obtained.
Appears in 2 contracts
Samples: Merger Agreement (JMP Group LLC), Merger Agreement (JMP Group LLC)
Company Meeting. (a) The Company agrees to give notice of an amended notice of meeting for the Company Meeting, setting the date for such meeting at September 26, 2018, preserving the existing record date convene and amending conduct the Company Meeting to be a special meeting to consider the Approval Resolution, and to convene and conduct such Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018), in accordance with the Company’s constating documents articles and by-laws and applicable Laws. The Company agrees that it shall not adjourn, postpone, delay or cancel Law in accordance with the Company Meeting without the prior written consent terms of the Purchaser except as required to constitute a quorum necessary to conduct the business of the Company Meeting (in which case the meeting shall be adjourned and not cancelled)Arrangement Agreement.
(b) Unless otherwise agreed to in writing by the Purchaser CBG or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority, the Company shall take all steps reasonably necessary to hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a)meeting.
(c) The Company shall not propose or submit for consideration at the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
(d) The Company shall solicit proxies of the Company Shareholders in favour of the Investment transactions contemplated by this Agreement and all matters to be approved by the Company Shareholders as set out in the Approval Resolution, and take all other actions reasonably requested by the Purchaser CBG to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the PurchaserCBG, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser CBG to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investmenttransactions contemplated by this Agreement.
(ed) The Company shall give notice to the Purchaser CBG of the Company Meeting and allow the PurchaserCBG’s representatives and legal counsel to attend the Company Meeting.
(fe) The Company shall advise the Purchaser CBG as reasonably requested, and on a daily basis on each of the last seven Business Days prior to the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of such meeting and all matters to be considered at such meeting.
(gf) The Company shall advise the Purchaser CBG of any written communication from any Company Shareholder in opposition to the Investmenttransactions contemplated by this Agreement.
(hg) The Company shall not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the PurchaserCBG.
(ih) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the PurchaserCBG.
(ji) In the event any of the Purchaser CBG or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser CBG shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiaries.
Appears in 2 contracts
Samples: Consent Agreement (Canopy Growth Corp), Consent Agreement (Canopy Growth Corp)
Company Meeting. (a) As soon as reasonably practicable following the date of this Agreement, the Company, acting through the Company Board, shall take all actions in accordance with applicable Law, its certificate of incorporation and by-laws and the rules of The Company agrees Nasdaq National Market to promptly and duly call, give notice of, convene and hold as promptly as reasonably practicable, a meeting of an amended notice the holders of meeting shares of Company Common Stock (the “Company Meeting”) for the purpose of considering and voting upon the Company Voting Proposal. In the event that subsequent to the date hereof, the Board of Directors of the Company determines that this Agreement is no longer advisable and makes a Change of Recommendation, the Company shall nevertheless submit this Agreement to the holders of the shares of Company Common Stock for adoption at the Company Meeting unless this Agreement shall have been terminated in accordance with its terms prior to the Company Meeting. Subject to Section 7.2, (i) the Company Board will recommend to the stockholders of the Company the adoption of the Company Voting Proposal and include such recommendation in the Proxy Statement and (ii) the Company Board shall not withhold, withdraw, qualify or modify, or publicly propose or resolve to withhold, withdraw, qualify or modify in a manner adverse to Parent, the recommendation of the Company Board that the Company’s stockholders vote in favor of the Company Voting Proposal. Subject to Section 7.2 (but without affecting in any manner the Company’s obligations pursuant to Section 7.3), the Company shall take all action that is both reasonable and lawful to solicit from its stockholders proxies in favor of the Company Voting Proposal and shall take all other action reasonably necessary or advisable to secure the vote or consent of the stockholders of the Company required by the rules of The Nasdaq National Market or the DGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn the Company Meeting, setting but only to the date for such meeting at September 26, 2018, preserving extent necessary to ensure that any required supplement or amendment to the existing record date and amending the Company Meeting Proxy Statement is provided to be a special meeting to consider the Approval Resolution, and to convene and conduct such Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018), in accordance with the Company’s constating documents and applicable Laws. The stockholders or, if there are insufficient shares of Company agrees that it shall not adjourn, postpone, delay Common Stock represented (either in person or cancel the Company Meeting without the prior written consent of the Purchaser except as required by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting (in which case the meeting shall be adjourned and not cancelled)Meeting’s stockholders.
(b) Unless otherwise agreed to in writing by the Purchaser or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority, the Company shall take all steps reasonably necessary to hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a).
(c) The Company shall not propose or submit for consideration at the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
(d) The Company shall solicit proxies of the Company Shareholders in favour of the Investment and all matters to be approved by the Company Shareholders as set out in the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.
(e) The Company shall give notice to the Purchaser of the Company Meeting and allow the Purchaser’s representatives and legal counsel to attend the Company Meeting.
(f) The Company shall advise the Purchaser as reasonably requested, and on a daily basis on each of the last seven Business Days prior to the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of such meeting and all matters to be considered at such meeting.
(g) The Company shall advise the Purchaser of any written communication from any Company Shareholder in opposition to the Investment.
(h) The Company shall not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser.
(i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Computer Associates International Inc), Merger Agreement (Niku Corp)
Company Meeting. Subject to receipt of the Interim Order and the terms of this Agreement:
(a) The Company agrees to give notice convene and conduct the Company Meeting in accordance with the Interim Order, the Company's constating documents, Section 2.1(b) hereof and applicable Laws on or before July 7, 2021 (it being acknowledged that the foregoing date may be extended by the same number of an amended notice days as contemplated by Section 2.2(a) to the extent applicable).
(b) The Company will use its commercially reasonable efforts to solicit proxies in favour of meeting for the approval of the Arrangement Resolution, including, if so requested by Acquiror and determined by the Company to be prudent in the circumstances, using proxy solicitation services.
(c) The Company will advise Acquiror as Acquiror may reasonably request, and at least on a daily basis on each of the last ten Business Days prior to the date of the Company Meeting, setting as to the date for such meeting at September 26, 2018, preserving tally of the existing record date and amending proxies received by the Company in respect of the Arrangement Resolution.
(d) The Company will give notice to Acquiror of the Company Meeting and allow representatives of Acquiror to be a special meeting attend the Company Meeting.
(e) Except to consider comply with Section 2.1(b) or Section 7.3(d) hereof, or as required for quorum purposes (in which case the Approval Resolution, and to convene and conduct such Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018shall be adjourned and not cancelled), in accordance with the Company’s constating documents and applicable Laws. The Company agrees that it shall will not adjourn, postpone, delay postpone or cancel the Company Meeting without the prior written consent of Acquiror and the Purchaser except as required to constitute a quorum necessary to conduct the business obligations of the Company Meeting (in which case the meeting shall under this Section 2.5(e) will not be adjourned and not cancelled).
(b) Unless otherwise agreed to in writing affected by the Purchaser commencement, public proposal, public disclosure or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority, communications to the Company shall take all steps reasonably necessary to hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a).
(c) The Company shall not propose or submit for consideration at the Company Meeting another person of any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
(d) The Company shall solicit proxies of the Company Shareholders in favour of the Investment and all matters to be approved by the Company Shareholders as set out in the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.
(e) The Company shall give notice Acquisition Proposal relating to the Purchaser of the Company Meeting and allow the Purchaser’s representatives and legal counsel to attend the Company MeetingCompany.
(f) The Company shall will promptly advise Acquiror of any written notice of dissent or purported exercise by any Company Shareholder of Dissent Rights received by the Purchaser as reasonably requestedCompany in relation to the Arrangement Resolution and any withdrawal of Dissent Rights received by the Company and, and subject to applicable Law, any written communications sent by or on a daily basis on each behalf of the last seven Business Days prior Company to any Company Shareholder exercising or purporting to exercise Dissent Rights in relation to the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of such meeting and all matters to be considered at such meetingArrangement Resolution.
(g) The Company shall advise Promptly upon the Purchaser request of any written communication from any Company Shareholder in opposition to the Investment.
(h) The Company shall not change the record date for Acquiror, the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser.
(i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or will use its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify prepare or cause to be prepared and provide to Acquiror a potential candidate who is Independent for nomination list of Company Securityholders of all classes, as well as a security position listing from each depositor of its securities, including CDS Clearing and Depositary Services Inc., and will obtain and will deliver to the Board within 45 days following the date of this Agreement;
(B) Acquiror thereafter on demand supplemental lists setting out any changes thereto, all such deliveries to be in printed form and, if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”available, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52computer-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiariesreadable format.
Appears in 1 contract
Company Meeting. The Company shall:
(a) The Company agrees to give notice of an amended notice of meeting for the Company Meeting, setting the date for such meeting at September 26, 2018, preserving the existing record date convene and amending conduct the Company Meeting to be a special meeting to consider the Approval Resolution, and to convene and conduct such Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018), in accordance with the Interim Order, the Company’s constating documents and applicable Laws. The Laws as promptly as practicable (and in any event the Company agrees will use commercially reasonable efforts to do so not later than June 30, 2024, provided that: (i) the Parent has filed its 10-k annual report in respect of the fiscal year ended December 31, 2023 not later than April 15, 2024; and (ii) the Company shall be under no obligation to hold the Company Meeting prior to the date that it shall is 50 days following the date that the Parent delivers to the Company all complete Additional Financial Disclosure required for inclusion in the Company Circular as contemplated by Section 5.02(c)(v), and in this regard, the Company may abridge any time periods that may be abridged under Securities Laws for the purpose of considering the Arrangement Resolution and for any other purposes as may be set out in the Company Circular and agreed to by the Parent in writing, acting reasonably; set, publish and give notice of, the record date for the Company Shareholders entitled to vote at the Company Meeting as promptly as reasonably practicable; and not adjourn, postpone, delay postpone or cancel (or propose the adjournment, postponement or cancellation of) the Company Meeting without the prior written consent of the Purchaser except as required to constitute a quorum necessary to conduct the business of the Company Meeting Parent (in which case the meeting shall be adjourned and not cancelled).
(b) Unless otherwise agreed to in writing by the Purchaser or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority, the Company shall take all steps reasonably necessary to hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a).
(c) The Company shall not propose or submit for consideration at the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed), except as required or permitted under Section 6.04 or Section 7.03(b) or as required for quorum purposes (in which case, the Company Meeting shall be adjourned and not cancelled) or as required by applicable Laws or a Governmental Entity. Notwithstanding the foregoing, the Company may further extend the time of the Company Meeting in the event that any auditor consent (or similar instrument) is required with respect to the Additional Financing Disclosure and such consent (or similar instrument) is not available at the scheduled time of printing the Company Circular – such extended period of time to be agreed to by the Company and the Parent, each acting reasonably.
(db) The Company shall solicit proxies subject to the terms of the Company Shareholders in favour of the Investment and all matters to be approved by the Company Shareholders as set out in the Approval Resolutionthis Agreement, and take all other actions reasonably requested by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, use its commercially reasonable efforts to solicit proxies in favour of the approval of the Approval ResolutionArrangement Resolution and against any resolution submitted by any Person that is inconsistent with, or which seeks (without the Parent’s consent) to hinder or delay, the Arrangement Resolution and take all other actions reasonably the completion of any of the transactions contemplated by this Agreement, including, at the Company’s discretion or if so requested by the Purchaser Parent, acting reasonably, and at the expense of the Parent, using dealer and proxy solicitation services and co-operating with any Persons engaged by the Parent to obtain solicit proxies in favour of the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.Arrangement Resolution;
(ec) The Company shall give notice to the Purchaser Parent of the Company Meeting and allow the PurchaserParent’s representatives and legal counsel to attend the Company Meeting.;
(fd) The Company shall promptly advise the Purchaser Parent, at such times as the Parent may reasonably requestedrequest, and including, as applicable, on a daily basis on each of the last seven ten (10) Business Days prior to the date of the Company Meeting, as to the aggregate tally of proxies received by the proxies and votes received Company in respect of such meeting and all matters to be considered at such meeting.the Arrangement Resolution;
(ge) The promptly advise the Parent of any purported exercise or withdrawal of Dissent Rights by the Company Shareholders, and the Company shall advise not settle or compromise or agree to settle or compromise any such claims for Dissent Rights without the Purchaser prior written consent of any written communication from any Company Shareholder in opposition to the Investment.Parent;
(hf) The Company shall not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including Meeting in connection with any adjournment or postponement of the Company Meeting, Meeting unless required by Law applicable Laws or with by order of the Court or if the Parent’s prior written consent of the Purchaser.is provided, such consent not to be unreasonably withheld, conditioned or delayed;
(ig) The unless this Agreement is terminated in accordance with Article VIII, the Company shall not waive submit to the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include Shareholders any Company Acquisition Proposal that requires the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company termination or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date modification of this Agreement;
(Bh) if provide the Parent with copies of or access to information regarding the Company and Meeting generated by any dealer or proxy solicitation services firm engaged by the Purchaser have not identified a mutually agreeable candidate for nomination Company, as requested from time to time by the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the BoardParent; and
(Ci) if at the Purchaser is unable reasonable request of the Parent from time to identify time, promptly provide the Parent with a director list (in electronic form) of: (i) the registered Company Shareholders, together with their addresses and respective holdings of Constellation Brandsthe Company Shares; (ii) the names and addresses (to the extent in the Company’s possession or otherwise reasonably obtainable by the Company) and holdings of all Persons having rights issued by the Company to acquire the Company Shares (including the holders of Company Options); and (iii) participants in book-based systems and non-objecting beneficial owners of the Company Shares, Inc. together with their addresses and respective holdings of the Company Shares. The Company shall from time to serve time require that its registrar and transfer agent furnish the Parent with such additional information, including updated or additional lists of the Company Shareholders and lists of holdings and other assistance as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its SubsidiariesParent may reasonably request.
Appears in 1 contract
Samples: Arrangement Agreement (Aditxt, Inc.)
Company Meeting. Subject to the terms of this Agreement and the receipt of the Interim Order, the Company covenants in favour of the Purchaser that the Company shall:
(a) The Company agrees to give notice of an amended notice of meeting for the Company Meeting, setting the date for such meeting at September 26, 2018, preserving the existing record date lawfully convene and amending hold the Company Meeting to be a special meeting to consider in accordance with the Approval ResolutionInterim Order, the Constating Documents of the Company and to convene and conduct such Company Meeting applicable laws, as promptly soon as reasonably practicable (after the Interim Order is issued and, in any event, on or before September 26not later than November 15, 2018)2023, for the purpose of having the Company Shareholders consider the Arrangement Resolution, and will not, unless the Purchaser otherwise consents in accordance with the Company’s constating documents and applicable Laws. The Company agrees that it shall not writing, adjourn, postpone, delay postpone or cancel the Company Meeting without the prior written consent or propose to do any of the Purchaser except foregoing except:
(i) for an adjournment as required to constitute a for quorum necessary to conduct the business of the Company Meeting purposes (in which case the meeting shall Company Meeting will be adjourned and not cancelled) or by applicable law; or
(ii) as required under Section 6.01(h).; or
(iii) in the event that the Company or the Purchaser reasonably determines that (x) any of the information relating to the Purchaser included in the Company Circular or the Schedule 13E-3 contains any untrue statement of material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading or (y) such adjournment is necessary or appropriate to address material comments of any Securities Authority in respect of any of the information relating to the Purchaser in the Company Circular or the Schedule 13E-3; provided that the Company and the Purchaser agree to cooperate with one another to make any necessary modifications to the Company Circular or the Schedule 13E-3 and/or address the comments of the applicable Securities Authority as expeditiously as reasonably practicable, provided, however, that, if the Company Meeting is scheduled to occur during a Superior Proposal Notice Period, the Company may, and upon the request of the Purchaser, the Company shall, adjourn or postpone the Company Meeting to: (x) a date specified by the Purchaser that is not earlier than eight Business Days after the date on which the Company Meeting was originally scheduled to be held; or (y) if the Purchaser does not specify such date to the eighth Business Day after the date on which the Company Meeting was originally scheduled to be held;
(b) Unless otherwise agreed to in writing by the Purchaser or this Agreement is terminated in accordance with its terms or not, except as required by applicable Law or by a Governmental Authority, the Company shall take all steps reasonably necessary to hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as otherwise expressly contemplated by Section 5.6(a).
(c) The Company shall not this Agreement, propose or submit for consideration at the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment Arrangement without the Purchaser’s 's prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.;
(dc) The Company shall subject to the terms of this Agreement, solicit proxies of from the Company Shareholders proxies in favour of the Investment approval of the Arrangement Resolution and all matters against any resolution submitted by any person that is inconsistent with, or which seeks (without the Purchaser's consent) to be approved hinder or delay the Arrangement Resolution and the consummation of the transactions contemplated by the Company Shareholders as set out in the Approval Resolutionthis Agreement including, and take all other actions reasonably if so requested by the Purchaser to obtain the approval of the Approval Resolution by the Company ShareholdersPurchaser, if so requested, including using the services of investment dealers and proxy solicitation agents, consulting with the Purchaser in the selection and retainer of any such proxy solicitation agent and reasonably considering the Purchaser's recommendation with respect to any such agent, and cooperating with any Persons persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Arrangement Resolution, recommend to all Company Shareholders that they vote in favour of the Arrangement Resolution, and take all other actions that are reasonably requested necessary or desirable to obtain the Company Shareholder Approval, and: (i) permit the Purchaser to assist and participate in all calls and meetings (other than, for the avoidance of doubt, non-substantive calls or meetings that are not, or could not reasonably be considered by the Purchaser to obtain be, material or otherwise relevant to the Shareholder Approval Purchaser) with such proxy solicitation agent; (ii) provide the Purchaser with all information distributions or updates from the proxy solicitation agent; (iii) consult with, and consider any suggestions from, the Purchaser with regards to the proxy solicitation agent; and (iv) consult with the Purchaser and keep the Purchaser apprised, with respect to such solicitation and other matters as may be necessary actions;
(d) not, without the prior written consent of the Purchaser, change the record date for Company Shareholders entitled to be approved vote at and notice of the Company Meeting in connection with any adjournment or postponement of the Investment.Company Meeting;
(e) The Company shall give notice to not, without the Purchaser prior written consent of the Purchaser, waive the deadline for the submission of proxies by Company Meeting and allow the Purchaser’s representatives and legal counsel to attend Shareholders for the Company Meeting.;
(f) The notify the Purchaser if any beneficial holders of Company shall Shares seek to become registered Company Shareholders by withdrawing their Company Shares from the book-based system;
(g) advise the Purchaser as reasonably requested, and on a daily basis on each of the last seven commencing 10 Business Days prior to the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of such meeting the Company Meeting and all matters to be considered at such meeting.the Company Meeting;
(gh) The promptly provide the Purchaser with any notice relating to the Company shall Meeting and allow Representatives of the Purchaser to attend the Company Meeting; and
(i) promptly advise the Purchaser of any written communication from any Company Shareholder Securityholder in opposition to the Investment.
(h) The Company shall not change Arrangement or the record date for the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser.
(i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Arrangement Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiaries.
Appears in 1 contract
Company Meeting. Subject to receipt of the Interim Order and the terms of this Agreement and the Interim Order:
(a) The Company agrees to give notice of an amended notice of meeting for the Company Meeting, setting the date for such meeting at September 26, 2018, preserving the existing record date convene and amending conduct the Company Meeting to be a special meeting to consider the Approval Resolution, and to convene and conduct such Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018), in accordance with the Interim Order, Company’s constating documents and applicable Laws. Laws on or before October 31, 2022.
(b) Unless the Company Board has made a Change in Recommendation in accordance with this Agreement, the Company will use its commercially reasonable efforts to solicit proxies in favour of the approval of the Arrangement Resolution, including, if so requested by the Acquiror and determined by the Company to be prudent in the circumstances, using proxy solicitation services.
(c) The Company agrees that it shall will advise the Acquiror as the Acquiror may reasonably request, and at least on a daily basis on each of the last ten business days prior to the date of the Company Meeting, as to the tally of the proxies received by the Company in respect of the Arrangement Resolution.
(d) Except to comply with applicable Law or Section 8.3.4 hereof, Company will not adjourn, postpone, delay postpone or cancel the Company Meeting without the prior written consent of the Purchaser except as required to constitute a quorum necessary to conduct Acquiror and the business obligations of the Company Meeting (in which case the meeting shall under this Section 2.3(d) will not be adjourned and not cancelled).
(b) Unless otherwise agreed to in writing affected by the Purchaser commencement, public proposal, public disclosure or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority, communications to the Company shall take all steps reasonably necessary or another person of any Acquisition Proposal relating to hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a).
(c) The Company shall not propose or submit for consideration at the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
(d) The Company shall solicit proxies of the Company Shareholders in favour of the Investment and all matters to be approved by the Company Shareholders as set out in the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the InvestmentCompany.
(e) The Company shall give will promptly advise the Acquiror of any written notice of dissent or purported exercise by any Company Shareholder of Dissent Rights received by the Company in relation to the Purchaser Arrangement Resolution and any withdrawal of Dissent Rights received by the Company and, subject to applicable Law, any written communications sent by or on behalf of the Company Meeting and allow to any Company Shareholder exercising or purporting to exercise Dissent Rights in relation to the Purchaser’s representatives and legal counsel to attend the Company MeetingArrangement Resolution.
(f) The Company shall advise Promptly upon the Purchaser as reasonably requested, and on a daily basis on each request of the last seven Business Days prior to Acquiror, the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of such meeting and all matters to be considered at such meeting.
(g) The Company shall advise the Purchaser of any written communication from any Company Shareholder in opposition to the Investment.
(h) The Company shall not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser.
(i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or will use its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination prepare or cause to be prepared and provide to the Board within 45 days following the date Acquiror a list of this Agreement;
(B) if the Company Securityholders of all classes, as well as a security position listing from each depositor of its securities, including CDS Clearing and the Purchaser have not identified a mutually agreeable candidate for nomination Depositary Services Inc., and will obtain and will deliver to the BoardAcquiror thereafter on demand supplemental lists setting out any changes thereto, the Purchaser shall use commercially reasonable efforts all such deliveries to identify a director of Constellation Brandsbe in printed form and, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”available, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52computer-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiariesreadable format.
Appears in 1 contract
Samples: Arrangement Agreement
Company Meeting. (a) The Company agrees to give notice of an amended notice of meeting for the Company Meeting, setting the date for such meeting at September 26, 2018, preserving the existing record date and amending the Company Meeting to be a special meeting to consider the Approval Resolution, and to convene and conduct such Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018), shall take all action necessary in accordance with the DGCL and its certificate of incorporation and bylaws to duly call, give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable after the SEC Clearance Date, subject to compliance with the DGCL and the Exchange Act, for the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”); provided that the Company Meeting shall in no event be scheduled for later than the fourtieth (40th) day following the first mailing of the Proxy Statement to the stockholders of the Company; provided, further, that the Company may postpone or adjourn the Company Meeting (and shall postpone or adjourn the Company Meeting upon the request of Parent in the event of clauses (b), (c) and (d) of this Section 5.3) (a) with the consent of Parent, (b) for the absence of a quorum, (c) after consultation with Parent, to allow reasonable additional time for any supplemental or amended disclosure which the Company has determined in good faith (after consultation with outside counsel) is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s constating documents stockholders prior to the Company Meeting or (d) to allow additional solicitation of votes in order to obtain the Company Stockholder Approval. As promptly as practicable after the date hereof, the Company shall conduct a “broker search” in accordance with Rule 14a-13 of the Exchange Act and applicable Lawstake all action necessary to establish a record date for the Stockholders’ Meeting. The Company agrees that it shall not adjournshall, postpone, delay or cancel through the Company Meeting without Board, but subject to the right of the Company Board to make a Company Adverse Recommendation Change pursuant to the terms hereof, provide the Company Board Recommendation and shall include the Company Board Recommendation in the Proxy Statement, and, unless there has been a Company Adverse Recommendation Change pursuant to the terms hereof or a termination of this Agreement in accordance with Section 7.2(d), the Company shall use reasonable best efforts to solicit proxies in favor of the Company Stockholder Approval. Parent, Merger Sub and their Representatives shall have the right to solicit proxies in favor of the Company Stockholder Approval. Notwithstanding any Company Adverse Recommendation Change, unless this Agreement is validly terminated pursuant to, and in accordance, with Article IX, this Agreement shall be submitted to the holders of Company Stock for the purpose of obtaining the Company Stockholder Approval. Without the prior written consent of the Purchaser except as required to constitute a quorum necessary to conduct the business of the Company Meeting Parent (in which case the meeting shall be adjourned and not cancelled).
(b) Unless otherwise agreed to in writing by the Purchaser or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority, the Company shall take all steps reasonably necessary to hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and consent shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a).
(c) The Company shall not propose or submit for consideration at the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
), (di) The Company shall solicit proxies the adoption of this Agreement, (ii) the Company Shareholders in favour of stockholder advisory vote contemplated by Rule 14a-21(c) under the Investment Exchange Act and all matters to be approved by the Company Shareholders as set out in the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.
(eiii) The Company shall give notice to the Purchaser adjournment of the Company Meeting and allow shall be the Purchaser’s representatives and legal counsel only matters (other than procedural matters) which the Company shall propose to attend be acted on by the holders of Company Stock at the Company Meeting.
(f) The Company shall advise the Purchaser as reasonably requested, and on a daily basis on each of the last seven Business Days prior to the Company Meeting, as to the aggregate tally of the proxies and votes received in respect of such meeting and all matters to be considered at such meeting.
(g) The Company shall advise the Purchaser of any written communication from any Company Shareholder in opposition to the Investment.
(h) The Company shall not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including in connection with any adjournment or postponement of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser.
(i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Covanta Holding Corp)
Company Meeting. (a) The Company agrees shall duly take all lawful action to call, give notice of an amended notice of meeting for the Company Meetingof, setting the date for such meeting at September 26, 2018, preserving the existing record date convene and amending hold the Company Meeting to be a special meeting to consider in accordance with the Approval ResolutionCompany Articles of Incorporation, the Company Bylaws, the Interim Order and to convene and conduct such Company Meeting applicable Law, as promptly as practicable (and, in any event, on or before September 26, 2018), in accordance with following the Company’s constating documents and applicable Laws. The Company agrees that it shall not adjourn, postpone, delay or cancel date upon which the Form S-4 becomes effective for the purpose of obtaining the Company Meeting without the prior written consent of the Purchaser except as required to constitute a quorum necessary to conduct the business of the Company Meeting (in which case the meeting shall be adjourned and not cancelled)Shareholder Approval.
(b) Unless otherwise agreed Subject to in writing by the Purchaser or terms of this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority(including Section 6.4), the Company shall take all steps reasonably necessary to hold the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a).
(c) The Company shall not propose or submit for consideration at the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, such consent not use its reasonable best efforts to be unreasonably withheld, conditioned or delayed.
(d) The Company shall solicit proxies of from the Company Shareholders proxies in favour favor of the Investment and all matters to be approved by approval of the Company Shareholders as set out in the Approval Resolution, Arrangement Resolution and take all other actions reasonably requested by the Purchaser Parent to obtain the approval of the Approval Resolution Arrangement by the Company Shareholders, if so requestedrequested and at Parent’s expense, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the PurchaserParent, to solicit proxies in favour favor of the approval of the Approval Resolution, Arrangement Resolution and take all other actions reasonably requested by the Purchaser Parent to obtain the Company Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.
Merger and (eii) permit Parent to assist, and consult with Parent and keep Parent apprised, with respect to such solicitation and other related actions. The Company shall give notice to the Purchaser of the Company Meeting and allow the Purchaser’s representatives and legal counsel to attend the Company Meeting.
(f) The Company shall advise the Purchaser as reasonably requestedshall, and on a daily basis on each of the last seven Business Days prior to the Company Meeting, as to the aggregate tally keep Parent reasonably informed of the proxies and number of proxy votes received in respect of such meeting and all matters to be considered acted upon at the Company Meeting, and in any event shall provide such meetingnumber promptly upon the request of Parent or its Representatives.
(g) The Company shall advise the Purchaser of any written communication from any Company Shareholder in opposition to the Investment.
(hc) The Company shall not change adjourn, postpone, delay or cancel (or propose for adjournment, postponement, delay or cancellation) the record date Company Meeting without Parent’s prior written consent; provided that the Company shall be permitted to adjourn, delay or postpone convening the Company Meeting if (A) the failure to adjourn, delay or postpone the Company Meeting would not, based upon the advice of outside legal counsel, allow sufficient time under applicable Law for the Company Shareholders entitled distribution of any required supplement or amendment to vote at the Joint Information Statement/Circular or Form S-4 or (B) in accordance with Section 6.4(e), (C) in accordance with Section 8.5, or (D) as of the time the Company MeetingMeeting is scheduled to occur (as set forth in the Interim Order), including there are insufficient Company Common Shares represented (either in connection with any adjournment person or postponement by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting, unless required by Law or with the prior written consent of the Purchaser.
(i) The Company shall not waive the deadline for the submission of proxies by Company Shareholders for but only until the Company Meeting without the prior written consent can be held at which there are a sufficient number of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled Company Common Shares represented to vote as constitute a Company Shareholder in respect of the Approval Resolution, and quorum; provided that the Company Meeting shall not be postponed or adjourned to a date that is not then in breach of this Agreement, more than fifteen (15) days after the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of date for which the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiarieswas originally scheduled.
Appears in 1 contract
Samples: Arrangement Agreement and Plan of Merger (Burger King Worldwide, Inc.)
Company Meeting. Subject to the terms of this Agreement and (except in respect of Section 2.3(b)) receipt of the Interim Order, the Company shall:
(a) The Company agrees to give notice of an amended notice of meeting for the Company Meeting, setting the date for such meeting at September 26, 2018, preserving the existing record date convene and amending conduct the Company Meeting to be a special meeting to consider in accordance with its constating documents, the Approval ResolutionInterim Order and applicable Laws, and use its commercially reasonable efforts to convene and conduct such schedule the Company Meeting as promptly as practicable (no later than April 9, 2021 and, in any event, on or before September 26, 2018), in accordance with the Company’s constating documents and applicable Laws. The Company agrees that it shall not adjourn, postpone, delay or cancel the Company Meeting without the prior written consent date of the Purchaser except as required Meeting, subject to constitute a quorum necessary the Purchaser having complied with its obligations pursuant to conduct the business of the Company Meeting (in which case the meeting shall be adjourned Section 2.5(d) and not cancelledSection 2.5(e).;
(b) Unless otherwise agreed to in writing by consultation with the Purchaser or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by Purchaser, fix and publish a Governmental Authority, record date for the purposes of determining the Company shall take all steps reasonably necessary Shareholders entitled to hold receive notice of and vote at the Company Meeting and give notice to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a).Purchaser of the Company Meeting;
(c) The Company shall not adjourn, postpone or cancel (or propose or submit for consideration at permit the adjournment, postponement or cancellation of) the Company Meeting any business other than (i) the election of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, except:
(i) as required for quorum purposes (in which case, the meeting shall be adjourned for a specified period of time and not cancelled);
(ii) as required by Law or by a Governmental Entity;
(iii) as expressly permitted under Section 5.5(l);
(iv) for adjournments of not more than ten (10) Business Days in the aggregate for the purposes of attempting to solicit proxies to obtain the Company Shareholder Approval; or
(v) to match any adjournment or postponement of the Purchaser Meeting or change in the date of the Purchaser Meeting such consent not to that the Company Meeting and the Purchaser Meeting can be unreasonably withheld, conditioned or delayed.held on the same day;
(d) The unless the Company shall Board has made the Company Change in Recommendation in accordance with the applicable provisions of this Agreement, use commercially reasonable efforts to solicit proxies of the Company Shareholders in favour of the Investment Arrangement Resolution and all matters to be approved against any resolution submitted by any Company Shareholder that is inconsistent with the Company Shareholders as set out in Arrangement Resolution and the Approval Resolutioncompletion of any of the transactions contemplated by this Agreement, and take all other actions reasonably including, if so requested by the Purchaser to obtain and at the approval expense of the Approval Resolution by the Company ShareholdersPurchaser, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, firms to solicit proxies in favour of the approval of the Approval Arrangement Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.;
(e) The Company shall give notice to provide the Purchaser with copies of or access to information regarding the Company Meeting and allow generated by any proxy solicitation services firm engaged by the Company, as requested from time to time by the Purchaser’s representatives and legal counsel to attend the Company Meeting.;
(f) The Company shall promptly advise the Purchaser as frequently as the Purchaser may reasonably requestedrequest, and at least on a daily basis on each of the last seven ten (10) Business Days prior to the date of the Company Meeting, as to the aggregate tally of the proxies and votes received by the Company in respect of such meeting and all matters to be considered at such meeting.the Arrangement Resolution;
(g) The Company shall promptly advise the Purchaser of any written communication from any Company Shareholder in opposition to the Investment.Arrangement, written notice of dissent or purported exercise by any Company Shareholder of Dissent Rights received by the Company in relation to the Arrangement and any withdrawal of Dissent Rights received by the Company and any written communications sent by or on behalf of the Company to any Company Shareholder exercising or purporting to exercise Dissent Rights in relation to the Arrangement;
(h) The provide the Purchaser with an opportunity to review and comment on any written communication sent by or on behalf of the Company shall to any Company Shareholder exercising or purporting to exercise Dissent Rights and not make any payment or settlement offer, or agree to any payment or settlement prior to the Effective Time with respect to Dissent Rights without the prior written consent of the Purchaser;
(i) not change the record date for the Company Shareholders entitled to vote at the Company Meeting, including Meeting in connection with any adjournment or postponement of the Company Meeting, Meeting unless required by Law or with Law;
(j) not without the prior written consent of the Purchaser.
(i) The Company shall , such consent not to be unreasonably withheld, conditioned or delayed, waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.Meeting; and
(k) at the request of the Purchaser from time to time, promptly provide the Purchaser with a list (in both written and electronic form) of: (i) the registered Company Shareholders, together with their addresses and respective holdings of Company Shares; (ii) the names and addresses (to the extent in the Company’s possession or otherwise reasonably obtainable by the Company) and holdings of all Persons having rights issued by the Company to acquire Company Shares (including the holders of Company Options); and (iii) participants in book-based systems and non- objecting beneficial owners of Company Shares, together with their addresses and respective holdings of Company Shares. The business Company shall from time to time require that its registrar and transfer agent furnish the Purchaser with such additional information, including updated or additional lists of the Company Meeting will include the election Shareholders and lists of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof holdings and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and other assistance as the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiariesmay reasonably request.
Appears in 1 contract
Samples: Arrangement Agreement
Company Meeting. (a) The Company agrees will (i) hold the Company Meeting by no later than May 27, 2022, subject to give notice the Purchaser complying with its obligations under this Section 3.06, and (ii) in consultation with the Purchaser as soon as reasonably practicable after the execution of an amended notice this Agreement, promptly prepare the Company Circular together with any other documents required by the CBCA and other applicable Laws in connection with the approval of meeting for the Amalgamation Resolution by the Company Shareholders at the Company Meeting, setting the date for such meeting at September 26, 2018, preserving the existing record date and amending the Company Meeting to be a special meeting to consider the Approval Resolution, and to convene and conduct such Company Meeting as promptly as practicable (and, in any event, on or before September 26, 2018), in accordance with the Company’s constating documents and applicable Laws. The Company agrees that it shall not adjourn, postpone, delay or cancel the Company Meeting without the prior written consent of the Purchaser except as required to constitute a quorum necessary to conduct the business of the Company Meeting (in which case the meeting shall be adjourned and not cancelled).
(b) Unless otherwise agreed The Company shall ensure that the Company Circular complies in all material respects with applicable Laws, and, without limiting the generality of the foregoing, that the Company Circular will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading in writing light of the circumstances in which they are made (other than in each case with respect to any information furnished by the Purchaser or this Agreement is terminated in accordance with its terms or except as required by applicable Law or by a Governmental Authority, Purchaser) and will provide the Company shall take all steps reasonably necessary Shareholders with information in sufficient detail to hold permit them to form a reasoned judgement concerning the matters to be placed before them at the Company Meeting and to cause the Approval Resolution to be voted on and approved at such meeting and shall not propose to adjourn, delay or postpone such meeting other than as contemplated by Section 5.6(a)Meeting.
(c) The Company shall not propose use commercially reasonable efforts to obtain any necessary consents from its auditor and any other advisors to the use of any financial or submit for consideration at other expert information required to be included in the Company Meeting any business other than (i) Circular and to the election identification in the Company Circular of directors; (ii) the appointment of auditors and (iii) the Investment without the Purchaser’s prior written consent, each such consent not to be unreasonably withheld, conditioned or delayedadvisor.
(d) The Company shall solicit proxies and the Purchaser will cooperate in the preparation, filing and mailing of the Company Circular. The Company will provide the Purchaser and its legal counsel with a reasonable opportunity to review and comment on all drafts of the Company Circular and other documents related thereto prior to filing the Company Circular with applicable Governmental Authorities and printing and mailing the Company Circular to the Company Shareholders and will give reasonable consideration to such comments. All information relating solely to the Purchaser included in the Company Circular shall be provided by the Purchaser in accordance with subsection (e) below and shall be in form and content satisfactory to the Purchaser, acting reasonably, and the Company Circular will include (i) a copy of the Company Fairness Opinion; (ii) a statement that the Company Board has unanimously determined that the Business Combination is fair to the Company Shareholders and is in the best interests of the Company, has approved the execution and delivery of this Agreement and the transactions contemplated by this Agreement; (iii) the Company Board Recommendation and the rationale for that recommendation; and (iv) a statement that the Company Supporting Shareholders have contractually agreed to vote all Company Shares beneficially owned or controlled, directly or indirectly, by them in favour of the Investment and all matters to be approved by the Company Shareholders as set out in the Approval Transaction Resolution, and take all other actions reasonably requested by the Purchaser to obtain the approval of the Approval Resolution by the Company Shareholders, if so requested, including using the services of investment dealers and proxy solicitation agents, and cooperating with any Persons engaged by the Purchaser, to solicit proxies in favour of the approval of the Approval Resolution, and take all other actions reasonably requested by the Purchaser to obtain the Shareholder Approval and such other matters as may be necessary to be approved in connection with the Investment.
(e) The Company shall give notice to Purchaser will, in a timely manner, furnish all such information regarding the Purchaser as may reasonably be required to be included in the Company Circular pursuant to applicable Laws (including pro forma financial statements) and any other documents related thereto and shall ensure that such information will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading in light of the Company Meeting and allow the Purchaser’s representatives and legal counsel to attend the Company Meetingcircumstances in which they are made.
(f) The Company and the Purchaser will each promptly notify the other if at any time before the Effective Date it becomes aware (in the case of the Company only with respect to the Company and in the case of the Purchaser only with respect to the Purchaser) that the Company Circular or any other document referred to in Section 3.06(e) contains any misrepresentation or otherwise requires any amendment or supplement and promptly deliver written notice to the other Party setting out full particulars thereof. In any such event, the Company and the Purchaser will cooperate with each other in the preparation, filing and dissemination of any required supplement or amendment to the Company Circular or such other document, as the case may be, and any related news release or other document necessary or desirable in connection therewith.
(g) The Company shall advise the Purchaser, as the Purchaser as may reasonably requestedrequest, and on a daily basis on each of the last seven 10 Business Days prior to the proxy cut-off date for the Company Meeting, as to the aggregate tally of the proxies and votes received by the Company in respect of such meeting the Amalgamation Resolution and all any other matters to be considered at such meetingthe Company Meeting.
(gh) The Company shall (i) promptly advise the Purchaser of any communication (written communication or oral) from any Company Shareholder in opposition to the Investment.
(h) The Company shall not change the record date for Business Combination, written notice of dissent, purported exercise or withdrawal of Dissent Rights and any other instruments served pursuant to Dissent Rights and received by the Company Shareholders entitled or any of its representatives and (ii) provide the Purchaser with an opportunity to vote at the Company Meeting, including in connection with review and comment on any adjournment written communication sent by or postponement on behalf of the Company Meeting, unless required by Law to any Company Shareholder exercising or with the prior written consent of the Purchaserpurporting to exercise Dissent Rights.
(i) The Company shall not waive make any payment or settlement offer, or agree to any payment or settlement prior to the deadline for the submission of proxies by Company Shareholders for the Company Meeting Effective Time with respect to Dissent Rights without the prior written consent of the Purchaser.
(j) In the event any of the Purchaser or its Affiliates is legally entitled to vote as a Company Shareholder in respect of the Approval Resolution, and provided that the Company is not then in breach of this Agreement, the Purchaser shall vote and shall cause its Affiliates to vote all Common Shares held by them in favour of the Approval Resolution.
(k) The business of the Company Meeting will include the election of the following directors:
(i) Xxxxx Xxxxxx;
(ii) Xxxx Xxxx;
(iii) Xxxxx Xxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxx;
(v) Xxxxx Xxxxx;
(vi) Xxxx Xxxxxxxxx; and
(vii) an individual (the “Seventh Nominee”) selected on the following basis between the date hereof and the Closing Date to hold office until the next annual meeting of shareholders of the Company or until his or her successor is elected or appointed:
(A) the Company and the Purchaser shall use commercially reasonable efforts to identify a potential candidate who is Independent for nomination to the Board within 45 days following the date of this Agreement;
(B) if the Company and the Purchaser have not identified a mutually agreeable candidate for nomination to the Board, the Purchaser shall use commercially reasonable efforts to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee on the Board; and
(C) if the Purchaser is unable to identify a director of Constellation Brands, Inc. to serve as the Seventh Nominee, the Purchaser shall have the right to designate any employee of Constellation Brands, Inc. or its Subsidiaries having the title of “Senior Vice President” or higher to serve as the Seventh Nominee on the Board. For purposes of this Section 5.6(k), “Independent”, in reference to an individual board nominee, means that such individual is (a) “independent” within the meaning of sections 1.4 and 1.5 of National Instrument 52-110 – Audit Committees and for purposes of the rules of the TSX and the rules of the NYSE, and (b) not an employee of Constellation Brands, Inc. or any of its Subsidiaries.
Appears in 1 contract
Samples: Business Combination Agreement (WonderFi Technologies Inc.)