Extraordinary General Meeting. (a) No later than ten (10) weeks following the Offer Commencement Date, the Company shall hold an extraordinary general meeting (the “EGM”) to: (i) provide information regarding the Offer; (ii) adopt a resolution to, subject to (A) the Acceptance Time having occurred and (B) the number of Shares validly tendered in accordance with the terms of the Offer (including Shares tendered during the Subsequent Offering Period, as it may be extended by the Minority Exit Offering Period) and not properly withdrawn, together with the Shares owned by Buyer or any of its Affiliates, representing at least eighty percent (80%) of the outstanding Shares (the “Asset Sale Threshold”), approve the asset sale as contemplated by the Asset Sale Documentation (the “Asset Sale”) as required under section 2:107a of the DCC; (iii) adopt a resolution to, subject to (A) the Acceptance Time having occurred, (B) the Asset Sale Threshold having been achieved but the Compulsory Acquisition Threshold not having been achieved and (C) the Asset Sale having been completed, (1) dissolve (ontbinden) the Company in accordance with section 2:19 of the DCC and (2) appoint as liquidator Stichting Vereffening NXP, a foundation (stichting) to be incorporated under Dutch Law and approve reimbursement of the liquidator’s reasonable salary and costs (provided that such reimbursement will be subject to the approval of the Independent Directors) and (3) appoint an Affiliate of the Company as the custodian of the books and records of the Company in accordance with section 2:24 of the DCC; (iv) adopt one or more resolutions effective upon the Acceptance Time to provide full and final discharge to each member of the Company Board for their acts of management or supervision, as applicable, up to the date of the EGM; provided that no discharge will be given to any director for acts as a result of fraud (bedrog), gross negligence (grove xxxxxx), or willful misconduct (opzet) of such director; (v) adopt one or more resolutions effective upon the Closing to appoint the Buyer Directors to replace the resigning members of the Company Board (the “Governance Resolutions”); (vi) adopt a resolution to, subject to Closing and effective the day immediately following the Closing Date, amend the articles of association of the Company to align the financial year of the Company with the financial year reckoned by Buyer; and (vii) adopt a resolution to, subject to the Shares having been delisted from the NASDAQ, (A) convert the Company from a public limited liability company (naamloze vennootschap) to a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and (B) amend the Company’s articles of association in connection with the matters described in clause (A). (b) Promptly after the date of this Agreement, the Company shall prepare appropriate materials for the EGM (together with any amendments and supplements thereto and any other documents required, the “EGM Materials”) relating to the matters set forth in Section 2.04(a). Subject to Section 5.03(d), the Company shall include the Company Recommendation in the EGM Materials. Buyer shall promptly furnish to the Company all information concerning Buyer and any of its Affiliates required to be set forth in the EGM Materials. The Company shall provide Buyer and its counsel with a reasonable opportunity to review and comment on the EGM Materials (and any amendments thereto) each time prior to dissemination to the shareholders of the Company and the Company shall include in the EGM Materials all comments reasonably proposed by Buyer and its counsel. The Company shall provide Buyer and its counsel, to the extent not prohibited under applicable Law, with (i) any comments or other communications, whether written or oral, that the Company or its counsel may receive from time to time from Governmental Authorities with respect to the EGM Materials promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (which response shall include all comments reasonably proposed by Buyer and its counsel), including by participating with the Company or its counsel in any discussions or meetings with Governmental Authorities to the extent such participation is not prohibited by the applicable Governmental Authority. (c) The Company shall consult with Buyer regarding the date of the EGM (or any Subsequent EGM) and, unless this Agreement is terminated in accordance with Section 8.01, shall not cancel the EGM (or any Subsequent EGM) without the prior written consent of Buyer; provided that the Company may, on no more than one (1) occasion, following reasonable consultation with Buyer, and, to the extent requested in writing by Buyer, the Company shall cancel and reconvene the EGM solely to the extent reasonably necessary (x) to ensure that any supplement or amendment to EGM Materials that the Company Board, after consultation with outside counsel, reasonably determines is necessary to comply with applicable Law is made available to the Company’s shareholders in advance of the EGM (and any Subsequent EGM) or (y) to solicit additional proxies in favor of the approvals set forth in Section 2.04(a). In the event the EGM is cancelled and reconvened pursuant to the foregoing proviso, the Company shall duly give notice of and reconvene the EGM on a date scheduled by mutual agreement of the Company and Buyer, acting reasonably, or, in the absence of such agreement, as soon as practicable following the date of such cancellation but, in any event, no later than the day that is thirty-five (35) days following the date of such cancellation (or, in the case of a Subsequent EGM, a date that shall be prior to the date of the Expiration Time). (d) The Company shall ensure that the EGM (and any Subsequent EGM) is called, noticed, convened, held and conducted in compliance in all material respects with all applicable Law. The adoption of the matters set forth in Section 2.04(a) shall be the only matters that the Company shall propose to be acted on by the shareholders of the Company at the EGM (and any Subsequent EGM), unless otherwise reasonably proposed by the Company and approved in advance in writing by Buyer (such approval not to be unreasonably withheld, conditioned or delayed). (e) Notwithstanding anything to the contrary in this Agreement, to the extent that, at the EGM, the Asset Sale Resolutions and/or the Governance Resolutions have not been adopted, the Company shall, following consultation with the Buyer, duly call and give notice of another EGM (the “Subsequent EGM”), which shall take place at a date reasonably acceptable to Buyer and not later than a date that shall be prior to the date of the Expiration Time. (f) Without limiting the generality of the foregoing, but subject to the Company’s rights to terminate this Agreement in accordance with Section 8.01, the Company agrees that (i) its obligation to duly call, give notice of, convene and hold the EGM (and any Subsequent EGM) in accordance with and subject to the terms hereof and (ii) its obligations pursuant to this Section 2.04, in each case, shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Alternative Acquisition Proposal (whether or not a Superior Proposal). Unless this Agreement is terminated in accordance with Section 8.01, the Company agrees that it shall not submit to the vote of the shareholders of the Company any Alternative Acquisition Proposal (whether or not a Superior Proposal) or any matters relating thereto. (g) At and prior to the EGM (and any Subsequent EGM), the Company shall use its reasonable best efforts to secure the approvals set forth in Section 2.04(a).
Appears in 3 contracts
Samples: Purchase Agreement, Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
Extraordinary General Meeting. (a) No later than ten (10) weeks following the Offer Commencement Date, the Company shall hold an extraordinary general meeting of its shareholders (the “EGM”) to:
(i) provide information regarding the Offer;
(ii) adopt a resolution to, subject to (A) the Acceptance Time having occurred and (B) the number of Shares validly tendered in accordance with the terms of the Offer (including Shares tendered during the Subsequent Offering Period, as it may be extended by the Minority Exit Offering Period) and not properly withdrawn, together with the Shares owned by Buyer or any of its Affiliates, representing at least eighty percent (80%) of the outstanding Shares (the “Asset Sale Threshold”), approve the asset sale as contemplated by the Asset Sale Documentation (the “Asset Sale”) as required under section 2:107a of the DCC;
(iii) adopt a resolution to, subject to (A) the Acceptance Time having occurred, (B) the Asset Sale Threshold having been achieved but the Compulsory Acquisition Threshold not having been achieved and (C) the Asset Sale having been completed, (1) dissolve (ontbinden) the Company in accordance with section 2:19 of the DCC and (2) appoint as liquidator Stichting Vereffening NXP, a foundation (stichting) to be incorporated under Dutch Law and approve reimbursement of the liquidator’s reasonable salary and costs (provided that such reimbursement will be subject to the approval of the Independent Directors) and (3) appoint an Affiliate of the Company as the custodian of the books and records of the Company in accordance with section 2:24 of the DCC;
(iv) adopt one or more resolutions effective upon the Acceptance Time to provide full and final discharge to each member of the Company Board for their acts of management or supervision, as applicable, up to the date of the EGM; provided provided, that no such discharge will be given limited to any director for acts the extent provided by general principles of Dutch law as a result of fraud (bedrog)in effect from time to time, gross negligence (grove xxxxxx), or willful misconduct (opzet) of such director;
(v) adopt one or more resolutions effective upon and the Closing shareholders circular distributed to appoint the Buyer Directors to replace the resigning members shareholders of the Company Board (shall refer to such limitation in general terms, consistent with the “Governance Resolutions”);
(vi) adopt a resolution to, subject to Closing and effective the day immediately following the Closing Date, amend the articles discussion of association discharge of directors of the Company to align the financial year that has been included in past shareholders circulars; provided, further, however, that (x) if Buyer or Parent, or any of their Affiliates, becomes a shareholder of the Company with Company, neither they, nor any of their successors or assigns, shall, regardless of the financial year reckoned scope of the discharge granted to directors by Buyer; and
(vii) adopt a resolution toany Discharge Resolution, subject assert any claim for liability against the directors in office immediately prior to the Shares having been delisted from EGM (or, if new directors are elected after the NASDAQEGM but prior to the Closing, against such directors), based on (A) convert acts or omissions of directors described in any information which is disclosed to Buyer or Parent in this Agreement, in the Company from a public limited liability company Letter or any information set forth in any Company SEC Document filed or furnished on or after December 31, 2014 and publicly available at least two (naamloze vennootschap2) Business Days prior to a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and (B) amend the Company’s articles of association in connection with the matters described in clause (A).
(b) Promptly after the date of this AgreementAgreement (but excluding any forward-looking disclosures set forth in any “risk factors” section, the Company shall prepare appropriate materials for the EGM (together with any amendments and supplements thereto disclosures in any “forward-looking statements” section and any other documents required, the “EGM Materials”) relating disclosures included therein to the matters set forth extent they are predictive or forward-looking in Section 2.04(a). Subject to Section 5.03(d)nature, the Company it being understood that any factual information contained within such sections shall include the Company Recommendation in the EGM Materials. Buyer shall promptly furnish to the Company all information concerning Buyer and not be excluded) or (B) any acts or omissions of its Affiliates required to be set forth in the EGM Materials. The Company shall provide Buyer and its counsel with a reasonable opportunity to review and comment on the EGM Materials (and any amendments thereto) each time prior to dissemination to the shareholders directors of the Company and the Company shall include in the EGM Materials all comments reasonably proposed by Buyer and its counsel. The Company shall provide Buyer and its counsel, prior to the extent not prohibited under applicable Law, with (i) any comments or other communications, whether written or oral, that the Company or its counsel may receive from time to time from Governmental Authorities with respect to the EGM Materials promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (which response shall include all comments reasonably proposed by Buyer and its counsel), including by participating with the Company or its counsel in any discussions or meetings with Governmental Authorities to the extent such participation is not prohibited by the applicable Governmental Authority.
(c) The Company shall consult with Buyer regarding the date of the EGM (or any Subsequent EGM) and, unless this Agreement is terminated in accordance with Section 8.01, shall not cancel the EGM (or any Subsequent EGM) without the prior written consent of Buyer; provided that the Company may, on no more than one (1) occasion, following reasonable consultation with Buyer, and, to the extent requested in writing by Buyer, the Company shall cancel and reconvene the EGM solely to the extent reasonably necessary (x) to ensure that any supplement or amendment to EGM Materials that the Company Board, after consultation with outside counsel, reasonably determines is necessary to comply with applicable Law is made available to the Company’s shareholders in advance of the EGM (and any Subsequent EGM) or (y) to solicit additional proxies in favor of the approvals set forth in Section 2.04(a). In the event the EGM is cancelled and reconvened pursuant to the foregoing proviso, the Company shall duly give notice of and reconvene the EGM on a date scheduled by mutual agreement of the Company and Buyer, acting reasonably, or, in the absence of such agreement, as soon as practicable following the date of such cancellation but, in any event, no later than the day that is thirty-five (35) days following the date of such cancellation Closing (or, in the case of Independent Directors, after the Closing) which are required to be taken under this Agreement; and (y) for the avoidance of doubt, the adoption of a Subsequent EGM, a date that Discharge Resolution shall be in addition to, and shall not in any way adversely affect, or limit in any way, the effect of any discharge of directors, or of members of the Company’s former Supervisory Board, adopted prior to the date of the Expiration Time).
shareholders meeting at which such Discharge Resolution is adopted (d) The Company shall ensure that the EGM (and any Subsequent EGM) is called, noticed, convened, held and conducted in compliance in all material respects with all applicable Law. The adoption of the matters set forth in Section 2.04(a) shall be the only matters that the Company shall propose to be acted on by the shareholders of the Company at the EGM (and any Subsequent EGM), unless otherwise reasonably proposed by the Company and approved in advance in writing by Buyer (such approval not to be unreasonably withheld, conditioned or delayed).
(e) Notwithstanding anything to the contrary as used in this Agreement, to the extent that, at term “Discharge Resolution” shall mean any resolution for the EGM, the Asset Sale Resolutions and/or the Governance Resolutions have not been adopted, the Company shall, following consultation with the Buyer, duly call and give notice discharge of another EGM (the “Subsequent EGM”), which shall take place at a date reasonably acceptable to Buyer and not later than a date that shall be prior to the date of the Expiration Time.
(f) Without limiting the generality of the foregoing, but subject to the Company’s rights to terminate this Agreement in accordance with Section 8.01, the Company agrees that (i) its obligation to duly call, give notice of, convene and hold the EGM (and any Subsequent EGM) in accordance with and subject to the terms hereof and (ii) its obligations directors adopted pursuant to this Section 2.04, in each case, shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Alternative Acquisition Proposal (whether or not a Superior Proposal). Unless this Agreement is terminated in accordance with Section 8.01, the Company agrees that it shall not submit to the vote of the shareholders of the Company any Alternative Acquisition Proposal (whether or not a Superior Proposal2.04(a)(ii) or any matters relating thereto.
(g) At and prior to the EGM (and any Subsequent EGM), the Company shall use its reasonable best efforts to secure the approvals set forth as provided in Section 2.04(a2.05(e).);
Appears in 2 contracts
Samples: Purchase Agreement (Mobileye N.V.), Purchase Agreement (Intel Corp)
Extraordinary General Meeting. (a) No later than ten (10) weeks following the Offer Commencement Date, the The Company shall hold an extraordinary general meeting (the “EGM”) as promptly as practicable, but in any event shall use its reasonable best efforts to hold such EGM within twelve (12) weeks following the Offer Commencement Date, to:
(i) provide information regarding the Offer;
(ii) adopt a resolution to, subject to (A) the Acceptance Time having occurred and occurred, (B) the number of Shares validly tendered in accordance with the terms of the Offer (including Shares tendered during the Subsequent Offering Period, as it may be extended by the Minority Exit Offering Period) and not properly withdrawn, together with the Shares owned by Buyer Parent or any of its Affiliates, representing at least eighty percent (80%) of the Company’s issued and outstanding Shares capital (geplaatst en uitstaand kapitaal) (the “Asset Sale Threshold”)) and (C) the Compulsory Acquisition Threshold having not been achieved, approve the asset sale as contemplated by the Asset Sale Documentation (the “Asset Sale”) as required under section Section 2:107a of the DCC;
(iii) adopt a resolution to, subject to (A) the Acceptance Time having occurred, (B) the Asset Sale Threshold having been achieved but the Compulsory Acquisition Threshold not having been achieved and (C) the Asset Sale having been completed, (1) dissolve (ontbinden) the Company in accordance with section Section 2:19 of the DCC and (2) appoint as liquidator Stichting Vereffening NXP, (the “Liquidator”) a foundation (stichting) to be incorporated under Dutch Law and approve reimbursement of the liquidatorLiquidator’s reasonable salary and costs (provided that such reimbursement will shall be subject to the approval of the Independent Directors) and (3) appoint an Affiliate of the Company Buyer as the custodian of the books and records of the Company in accordance with section Section 2:24 of the DCC;
(iv) adopt one or more resolutions effective upon the Acceptance Time to provide full and final discharge to each member of the Company Board for their acts of management or supervision, as applicable, up to the date of the EGM; provided that no discharge will shall be given to any director for acts as a result of fraud (bedrog), gross negligence (grove xxxxxx), ) or willful misconduct (opzet) of such directordirector (the “Discharge Resolutions”);
(v) adopt one or more resolutions to amend the articles of association of the Company substantially in accordance with the draft of the amended articles of association attached as Schedule 2.04(a)(v) (Amended Articles of Association of the Company after Delisting and Conversion), which shall be executed and become effective as soon as practicable following the delisting of the Company and the Shares from the NYSE and which includes the conversion of the Company into a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid);
(vi) adopt one or more resolutions effective upon the Closing to appoint the Buyer Directors to replace the resigning members of the Company Board (together with the resolutions to be adopted pursuant to Section 2.04(v), the “Governance Resolutions”);
(vi) adopt a resolution to, subject to Closing and effective the day immediately following the Closing Date, amend the articles of association of the Company to align the financial year of the Company with the financial year reckoned by Buyer; and
(vii) adopt a resolution to, subject to conduct such other business as may properly come before the Shares having been delisted from the NASDAQ, (A) convert the Company from a public limited liability company (naamloze vennootschap) to a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and (B) amend the Company’s articles of association in connection with the matters described in clause (A)meeting.
(b) Promptly As promptly as practicable after the date of this Agreement but, in the case of the Proxy Statement, in no event later than the fifteenth (15th) Business Day after the date of this Agreement, the Company shall prepare and file with the SEC a preliminary proxy statement to be sent to the Company’s shareholders in connection with the EGM (the “Proxy Statement”) and any other appropriate materials for the EGM (together with the Proxy Statement and with any amendments and supplements thereto and any other documents required, the “EGM Materials”) relating to the matters set forth in Section 2.04(a). Subject to Section 5.03(d5.03(e), the Company shall include the Company Recommendation in the EGM Materials. Parent and Buyer shall promptly furnish to the Company all information concerning Parent, Buyer and any of its their Affiliates required to be set forth in the EGM Materials. The Company shall provide Parent, Buyer and its their counsel with a reasonable opportunity to review and comment on the EGM Materials (and any amendments thereto) each time prior to their filing with the SEC and/or dissemination to the shareholders of the Company Company, as applicable, and the Company shall include consider in good faith including in the EGM Materials all comments reasonably proposed by Parent, Buyer and its their counsel. The Company shall provide Parent, Buyer and its their counsel, to the extent not prohibited under applicable Law, with (i) any comments or other communications, whether written or oral, that the Company or its counsel may receive from time to time from the SEC or any other Governmental Authorities with respect to the EGM Materials promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (which and the Company shall consider in good faith including in such response shall include all comments reasonably proposed by Parent, Buyer and its their counsel), including by participating with the Company or its counsel in any discussions or meetings with the SEC or any other Governmental Authorities to the extent such participation is not prohibited by the SEC or the applicable Governmental Authority. Promptly following the later of (i) confirmation by the SEC that it has no further comments on the Proxy Statement and (ii) the expiration of the ten (10)-day waiting period contemplated by Rule 14a-6(a) promulgated by the SEC, the Company shall cause the Proxy Statement in definitive form to be filed with the SEC and mailed to the Company’s shareholders.
(c) The Company shall consult with Parent and Buyer regarding the date of the EGM (or any Subsequent EGM) and, unless this Agreement is terminated in accordance with Section 8.01, shall not cancel cancel, postpone or adjourn the EGM (or any Subsequent EGM) without the prior written consent of Parent and Buyer; provided provided, that the Company may, on no more than one (1) occasion, following reasonable consultation with Parent and Buyer, andadjourn, to the extent requested in writing by Buyer, the Company shall postpone or cancel and reconvene the EGM solely to the extent reasonably necessary (x) to ensure that any supplement or amendment to the relevant EGM Materials that the Company Board, after consultation with outside counsel, reasonably determines is necessary to comply with applicable Law is made available to the Company’s shareholders in advance of the EGM (and any Subsequent EGM) or (y) to solicit additional proxies in favor of the approvals set forth in Section 2.04(a), if as of the date of the scheduled EGM there are not sufficient proxies that have been received approving such matters. In the event the EGM is adjourned, postponed or cancelled and reconvened pursuant to the foregoing proviso, the Company shall duly give notice of and reconvene the EGM on a date scheduled by mutual agreement of the Company Company, on the one hand, and Parent and Buyer, on the other hand, acting reasonably, or, in the absence of such agreement, as soon as practicable following the date of such adjournment, postponement or cancellation but, in any event, no later than the day that is thirty-five (35) days following the date of such adjournment, postponement or cancellation (or, in the case of a any Subsequent EGM, a date that shall be prior to the date of on which the Expiration TimeTime shall occur).
(d) The Company shall ensure that the EGM (and any Subsequent EGM) is called, noticed, convened, held and conducted in compliance in all material respects with all applicable LawLaws. The adoption approval of the matters set forth in Section 2.04(a2.04(a)(i)-(vi) shall be the only matters that the Company shall propose to be acted on by the shareholders of the Company at the EGM (and any Subsequent EGM), unless otherwise reasonably proposed by the Company and approved in advance in writing by Parent and Buyer (such approval not to be unreasonably withheld, conditioned or delayed).
(e) Notwithstanding anything to the contrary in this Agreement, if the Company Board determines in its reasonable discretion that any additional shareholders resolutions should be adopted in order to approve any of the extent thatSigning Transactions, or if the Governance Resolutions or the Asset Sale Resolutions have not been adopted at the EGM, the Asset Sale Resolutions and/or the Governance Resolutions have not been adoptedthen, in each case, the Company shall, following consultation with the Parent and Buyer, duly call and give notice of another EGM (the a “Subsequent EGM”), which shall take place at a date reasonably acceptable to Parent and Buyer and not later than a date that shall be prior to the date of the Expiration Time, at which the Governance Resolutions or the Asset Sale Resolutions, or the additional resolutions as referred to above shall be considered or reconsidered, as the case may be.
(f) Without limiting the generality of the foregoing, but subject to the Company’s rights to terminate this Agreement in accordance with Section 8.01, the Company agrees that (i) its obligation to duly call, give notice of, convene and hold the EGM (and any Subsequent EGM) in accordance with and subject to the terms hereof and (ii) its obligations pursuant to this Section 2.04, in each case, shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Alternative Acquisition Proposal (whether or not a Superior Proposal)) or any Adverse Recommendation Change. Unless this Agreement is terminated in accordance with Section 8.01, the Company agrees that it shall not submit to the vote of the shareholders of the Company any Alternative Acquisition Proposal (whether or not a Superior Proposal) or any matters relating thereto.
(g) At and prior to the EGM (and any Subsequent EGM), the Company shall use its reasonable best efforts to secure the approvals approval of the matters set forth in Section 2.04(a).
Appears in 2 contracts
Samples: Purchase Agreement (Patheon N.V.), Purchase Agreement (Patheon N.V.)
Extraordinary General Meeting. (a) No later than ten (10) weeks following Subject to the Offer Commencement Dateprovisions of this Section 2.4, the Company shall hold an extraordinary general meeting of its shareholders (the “EGM”) as promptly as practicable to:
(i) provide information regarding the Offer;
(ii) adopt a resolution to, subject to (A) the Acceptance Time having occurred and (B) the number of Shares validly tendered in accordance with the terms of the Offer (including including, if applicable, Shares tendered during the Subsequent Offering Period, as it may be extended by the Minority Exit Offering Period) and not properly withdrawn, together with the Shares owned by Buyer Parent or any of its Affiliateswholly owned Subsidiaries, representing at least eighty percent (80%) of the Company’s issued and outstanding Shares capital (geplaatst en uitstaand kapitaal) (the “Asset Sale Reorganization Threshold”), approve the asset sale as contemplated by the Asset Sale Documentation (the “Asset Sale”) as required under section Section 2:107a of the DCC;
(iii) adopt a resolution to, subject to (A) the Acceptance Time having occurred, (B) the Asset Sale Reorganization Threshold having been achieved but the Compulsory Acquisition Threshold not having been achieved and (C) the Asset Sale having been completed, (1) dissolve (ontbinden) the Company in accordance with section Section 2:19 of the DCC and (2) appoint as liquidator Stichting Vereffening NXP, (the “Liquidator”) a foundation (stichting) to be incorporated under Dutch Law and approve reimbursement of the liquidatorLiquidator’s reasonable salary and costs (provided that such reimbursement will be subject to the approval of the Independent DirectorsDirectors not to be unreasonably withheld, conditioned or delayed) and (3) appoint an Affiliate of the Company Buyer as the custodian of the books and records of the Company in accordance with section Section 2:24 of the DCC;
(iv) adopt a resolution to, subject to (A) the Acceptance Time having occurred and (B) the Reorganization Threshold having been achieved, to amend the articles of association of the Company to include a provision determining the compensation for shareholders who will be voting against the resolution for the First-Step Merger and filing a request for compensation attached as Annex II(A) (Deed of Amendment for Price Determination), and to approve the Mergers as contemplated by the Merger Agreement as provided for under Section 2:309 et seq. of the DCC;
(v) adopt one or more resolutions effective upon the Acceptance Time to provide full and final discharge to each member of the Company Board for their acts of management or supervision, as applicable, up to the date of the EGM; provided that no such discharge will be given limited to any director for acts the extent provided by general principles of Dutch law as a result of fraud (bedrog), gross negligence (grove xxxxxx), or willful misconduct (opzet) of such directorin effect from time to time;
(vvi) adopt one or more resolutions effective upon to (A) convert the Closing to appoint Company from a public limited liability company (naamloze vennootschap) into a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) and amend the Buyer Directors to replace the resigning members articles of association of the Company Board substantially in accordance with the draft of the amended articles of association attached as Annex II(B) (Amended Articles of Association of the “Governance Resolutions”Company after Conversion) and which will be executed and become effective as soon as practicable following Closing if elected by Buyer and (B) amend the articles of association of the Company substantially in accordance with the draft of the amended articles of association attached as Annex II(C) (Amended Articles of Association of the Company after Delisting), which will be executed and become effective as soon as practicable following the delisting of the Company and the Shares from Nasdaq, if elected by Buyer;
(vivii) adopt a resolution toresolution, subject to Closing and effective on the day immediately following the Closing Datedate elected by Parent, if any, to amend the articles of association of the Company to align the financial year of the Company with the financial year reckoned by Buyer; andBuyer attached as Annex II(D) (Financial Year Deed of Amendment);
(viiviii) adopt a resolution toone or more resolutions, subject to the Shares having been delisted from the NASDAQClosing, to effectuate and complete a statutory spin-off (Aafsplitsing) convert of the Company from as a public limited liability company (naamloze vennootschap) to result of which all or part of the Company’s assets or liabilities, as elected by Buyer, will be spun into a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) organized under the Laws of the Netherlands that is wholly owned by the Company (the “Demerger”);
(ix) adopt one or more resolutions effective upon the Closing to appoint the Buyer Directors to replace the resigning directors of the Company Board and to accept the resignations of the resigning directors of the Company Board (B) amend the Company’s articles of association in connection together with the matters described in clause resolutions to be adopted pursuant to Section 2.4(a)(vi) and Section 2.4(a)(vii), the “Governance Resolutions”); and
(A)x) conduct such other business as may properly come before the meeting.
(b) Promptly As promptly as practicable after the date of this Agreement but, in no event later than the forty-fifth (45th) Business Day after the date of this Agreement, the Company shall prepare and file with the SEC a preliminary proxy statement in connection with the EGM (the “Proxy Statement”) and any other appropriate materials for the EGM (together with the Proxy Statement and with any amendments and supplements thereto and any other documents required, the “EGM Materials”) relating to the matters set forth in Section 2.04(a2.4(a). Subject to Section 5.03(d5.3(e)(ii), the Company shall include the Company Board Recommendation in the EGM Materials. Parent and Buyer shall cooperate with the Company in the preparation of the EGM Materials and furnish promptly furnish to the Company all information concerning Parent, Buyer and any of its their Affiliates required to be set forth in the EGM Materials. The Company shall provide Parent, Buyer and its their counsel with a reasonable opportunity to review and comment on the EGM Materials (and any amendments thereto) each time prior to their filing with the SEC and/or dissemination to the shareholders of the Company Company, as applicable, and the Company shall include in the EGM Materials give due consideration to all comments reasonably proposed reasonable additions, deletions or changes to such documents (and any amendments thereto) suggested thereto by Parent, Buyer and its their counsel. The Company shall provide Parent, Buyer and its their counsel, to the extent not prohibited under applicable Law, with (i) any comments or other communications, whether written or oral, that the Company or its counsel may receive from time to time from the SEC or any other Governmental Authorities Bodies with respect to the EGM Materials promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (which and the Company shall give due consideration to all reasonable additions, deletions or changes to such response shall include all comments reasonably proposed by Parent, Buyer and its their counsel), including by participating with the Company or its counsel in any discussions or meetings with the SEC or any other Governmental Authorities Bodies to the extent such participation is not prohibited by the SEC or the applicable Governmental AuthorityBody. The parties hereto agree that, notwithstanding the notice provisions of this Agreement, communications with respect to the Proxy Statement, including communications related to any SEC comments, may be made on behalf of each party by email through their respective counsel. Promptly following the later of (i) confirmation by the SEC that it has no further comments on the Proxy Statement and (ii) the expiration of the ten (10)-day waiting period contemplated by Rule 14a-6(a) promulgated by the SEC, the Company shall cause the Proxy Statement in definitive form to be filed with the SEC and mailed to the Company’s shareholders.
(c) The Company shall consult with Parent and Buyer regarding the date of the EGM (or any Subsequent EGM) and, unless this Agreement is terminated in accordance with Section 8.01Article VI, shall not cancel cancel, postpone or adjourn the EGM (or any Subsequent EGM) without the prior written consent of Parent and Buyer; provided provided, that the Company may, on no more than one (1) occasion, following reasonable consultation with Parent and Buyer, and, to the extent requested in writing by Parent and Buyer, the Company shall shall, adjourn, postpone or cancel and reconvene the EGM (or any Subsequent EGM) solely to the extent reasonably necessary (x) to ensure that any supplement or amendment to the relevant EGM Materials that the Company Board, after consultation with outside counsel, reasonably determines is necessary to comply with applicable Law is made available to the Company’s shareholders in advance of the EGM (and any Subsequent EGM) or (y) on no more than two (2) occasions of not more than ten (10) Business Days each, to solicit additional proxies in favor of the approvals set forth in Section 2.04(a2.4(a), if as of the date of the scheduled EGM (or any Subsequent EGM) there are not sufficient proxies that have been received approving such matters. In the event the EGM (or any Subsequent EGM) is adjourned, postponed or cancelled and reconvened pursuant to the foregoing proviso, the Company shall duly give notice of and reconvene the EGM or such Subsequent EGM on a date scheduled by mutual agreement of the Company Company, on the one hand, and Parent and Buyer, on the other hand, acting reasonably, or, in the absence of such agreement, as soon as practicable following the date of such adjournment, postponement or cancellation but, in any event, no later than the day that is thirty-five (35) days following the date of such adjournment, postponement or cancellation (or, in the case of a any Subsequent EGM, a date that shall be prior to the date of on which the Expiration TimeTime shall occur).
(d) The Company shall ensure that the EGM (and any Subsequent EGM) is called, noticed, convened, held and conducted in compliance in all material respects with all applicable LawLaws. Without limiting the foregoing, prior to holding the EGM (or any applicable Subsequent EGM), the Company will comply with all applicable requirements with respect to the holding of an EGM (or Subsequent EGM, if applicable) to act upon the Merger Resolutions, including the pre-meeting filing and publication requirements of the DCC with respect to the First-Step Merger (collectively, the “Dutch Merger Publication”). Notwithstanding anything to the contrary in this Section 2.4, the date of the Dutch Merger Publication shall be on a date reasonably selected by Parent and the Company, and the EGM (or Subsequent EGM, if applicable) shall be held in compliance with all applicable Laws as promptly as practicable after the date of the Dutch Merger Publication. The adoption approval of the matters set forth in Section 2.04(a2.4(a)(i)-(viii) shall be the only matters that the Company shall propose to be acted on by the shareholders of the Company at the EGM (and any Subsequent EGM), unless otherwise reasonably proposed by the Company and approved in advance in writing by Parent and Buyer (such approval not to be unreasonably withheld, conditioned or delayed); provided, that the Company may hold the EGM or Subsequent EGM simultaneously with the Company’s annual meeting if the Company otherwise complies with the timing requirements for the EGM or Subsequent EGM set forth in this Section 2.4, including the obligation to hold such meeting as promptly as practicable.
(e) Notwithstanding anything to the contrary in this Agreement, if the Company Board determines in its reasonable discretion that any additional shareholders resolutions should be adopted in order to approve any of the extent thatSigning Transactions, or if the Governance Resolutions, the Asset Sale Resolutions, the Merger Resolutions or the Demerger Resolutions have not been adopted at the EGM, the Asset Sale Resolutions and/or the Governance Resolutions have not been adoptedthen, in each case, the Company shall, following consultation with the Parent and Buyer, duly call and give notice of another EGM (the a “Subsequent EGM”), which shall will take place at a date determined by the Company and reasonably acceptable to Parent and Buyer and not later than a date that shall be is prior to the date of the Expiration Time, at which the Governance Resolutions, the Asset Sale Resolutions, the Merger Resolutions or the Demerger Resolutions, or the additional resolutions as referred to above will be considered or reconsidered, as the case may be.
(f) Without limiting the generality of the foregoing, but subject to the Company’s rights to terminate this Agreement in accordance with Section 8.01, Article VI the Company agrees that (i) its obligation to duly call, give notice of, convene and hold the EGM (and any Subsequent EGM) in accordance with and subject to the terms hereof and (ii) its obligations pursuant to this Section 2.042.4, in each case, shall will not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Alternative Acquisition Proposal (whether or not a Superior Proposal)) or any Change of Board Recommendation. Unless this Agreement is validly terminated in accordance with Section 8.01Article VI, the Company agrees that it shall not submit to the vote of the shareholders of the Company any Alternative Acquisition Proposal (whether or not a Superior Proposal) or any matters relating thereto.
(g) At Except to the extent there has been a Change of Board Recommendation, at and prior to the EGM (and any Subsequent EGM), the Company shall use its reasonable best efforts to secure the approvals approval of the matters set forth in Section 2.04(a2.4(a).
Appears in 2 contracts
Samples: Purchase Agreement (Stryker Corp), Purchase Agreement (Wright Medical Group N.V.)
Extraordinary General Meeting. (a) No As promptly as practicable following the date of this Agreement and in any event no later than ten five (105) weeks Business Days following the Offer Commencement Datesuch date, the Company shall hold duly call and give notice to an extraordinary general meeting of shareholders (the “EGM”) and, as promptly as practicable following the date of this Agreement taking into account a notice period of at least thirty-eight (38) days, the Company shall hold the EGM, to:
(i) provide information regarding the Offer;
(ii) adopt a resolution effective upon the Acceptance Time to (A) provide discharge to all of the existing members of the Management Board and Xx. X. Little (former member of the Management Board) and all of the existing members of the Supervisory Board and (B) subject to Section 2.04(f) and Section 2.05, appoint such new members to the Boards as designated by Buyer, upon the binding nomination of the Supervisory Board, to replace the resigning members of the Boards;
(iii) adopt a resolution to approve the sale by the Company, conditional upon the number of Shares tendered pursuant to the Offer (including during the Subsequent Offering Period and during the Minority Exit Offering Period) falling within the Asset Sale Range, of all of the assets to, including any Tax attributes to the extent transferable, and assumption of all liabilities of the Company (except for certain assets and liabilities set forth in the Asset Sale Agreement) by, Buyer and/or one or more of its designees for aggregate consideration of (A) cash and a note payable (the “Note Payable”) from Buyer or one or more of its designees in an aggregate principal amount equal to the Offer Consideration multiplied by the total number of outstanding Shares as of the Closing (and in the case of the Note Payable, it shall be prepayable without penalty or premium but shall require Buyer to pay to the Company, on or promptly following the completion of the Subsequent Offering Period and the Minority Exit Offering Period) and (B) the assumption by Buyer and/or its designees of liabilities and obligations of the Company as set forth in Asset Sale Agreement (the transaction described in this clause (iii), the “Asset Sale”);
(iv) (A) adopt a resolution to, subject to the number of Shares tendered pursuant to the Offer (including during the Subsequent Offering Period and during the Minority Exit Offering Period) falling within the Asset Sale Range, amend the articles of association of the Company for the purpose of, among other things, permitting the appointment by the general meeting of the Company of a liquidator, including the authorization of all members of the Management Board and any and all lawyers and paralegals practicing with De Brauw Blackstone Westbroek N.V. to execute such deed of amendment of the articles of association of the Company and (B) adopt a resolution to, subject to (1) the number of Shares tendered pursuant to the Offer (including during the Subsequent Offering Period and during the Minority Exit Offering Period) falling within the Asset Sale Range, (2) the amendment of the articles of association referred to under Section 2.04(a)(iv)(A) and (3) completion of the Asset Sale, appoint as liquidator Stichting Vereffening AVG Technologies, a foundation (stichting) to be incorporated under Dutch law. The board of the foundation will initially consist of one (1) member designated by Buyer and two (2) members designated by the Company ultimately five (5) Business Days before the EGM. The Parties will designate one or more professional liquidator(s) (natural person(s) or a professional liquidator service provider) as member(s) of the board of the liquidator, under supervision of the Supervisory Board, including the Independent Directors whose affirmative vote will be required for the appointment and dismissal of such board members. The Parties will use their best efforts to designate such professional liquidator (service provider) to replace the initial board members as soon as possible after the EGM and timely reach agreement with such service provider so that the professional liquidator (service provider) is appointed prior to the contemplated Second Step Distribution;
(v) adopt a resolution to, subject to (A) delisting of the Acceptance Time having occurred Shares from the NYSE, (B) the Asset Sale not being pursued, and (BC) the number of Shares validly tendered in accordance with the terms of pursuant to the Offer (including Shares tendered during the Subsequent Offering Period, as it may be extended by Period and during the Minority Exit Offering Period) and not properly withdrawn, together with the Shares owned by Buyer or any of its Affiliates, representing at least eighty percent (80%) of the outstanding Shares (the “Asset Sale Threshold”), approve the asset sale as contemplated by the Asset Sale Documentation (the “Asset Sale”) as required under section 2:107a of the DCC;
(iii) adopt a resolution to, subject to (A) the Acceptance Time having occurred, (B) the Asset Sale Threshold having been achieved but the Compulsory Acquisition Threshold not having been achieved and (C) the Asset Sale having been completedShares, (1) dissolve (ontbinden) the Company in accordance with section 2:19 of the DCC and (2) appoint as liquidator Stichting Vereffening NXP, a foundation (stichting) to be incorporated under Dutch Law and approve reimbursement of the liquidator’s reasonable salary and costs (provided that such reimbursement will be subject to the approval of the Independent Directors) and (3) appoint an Affiliate of the Company as the custodian of the books and records of the Company in accordance with section 2:24 of the DCC;
(iv) adopt one or more resolutions effective upon the Acceptance Time to provide full and final discharge to each member of the Company Board for their acts of management or supervision, as applicable, up to the date of the EGM; provided that no discharge will be given to any director for acts as a result of fraud (bedrog), gross negligence (grove xxxxxx), or willful misconduct (opzet) of such director;
(v) adopt one or more resolutions effective upon the Closing to appoint the Buyer Directors to replace the resigning members of the Company Board (the “Governance Resolutions”);
(vi) adopt a resolution to, subject to Closing and effective the day immediately following the Closing Date, amend the articles of association of the Company to align the financial year of the Company with the financial year reckoned by Buyer; and
(vii) adopt a resolution to, subject to the Shares having been delisted from the NASDAQ, (A) convert the Company from a public limited liability company (naamloze vennootschap) to a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) ), and (B2) amend the Company’s articles of association in connection with the matters described in clause (1), including the authorization of all members of the Management Board and any and all lawyers and paralegals practicing with De Brauw Blackstone Westbroek N.V. to execute such deed of amendment of the articles of association of the Company; and
(vi) adopt a resolution to, subject to (A) the number of Shares tendered pursuant to the Offer (including during the Subsequent Offering Period and during the Minority Exit Offering Period) falling within the Asset Sale Range, (B) the deed of amendment of the articles of association effecting the changes referred to under Section 2.04(a)(iv)(A) having been executed and (C) completion of the Asset Sale, dissolve the Company (resulting in a liquidation) and approve that the proceeds of such sale will be distributed by means of a liquidation distribution (which may be an advance distribution) (the “Second Step Distribution”) to the shareholders of the Company such that each holder of Shares that were not tendered pursuant to the Offer (including during the Subsequent Offering Period and during the Minority Exit Offering Period) shall receive cash in an amount equal to the Offer Consideration multiplied by the number of Shares then held by such holder (without interest, less any applicable withholding Taxes).
(b) Promptly after the date of this Agreement, the Company shall prepare appropriate materials for the EGM (together with any amendments and supplements thereto and any other documents required, the “EGM Materials”) relating to the matters set forth in Section 2.04(a). Subject to Section 5.03(d5.03(e), the Company shall include the Company Recommendation in the EGM Materials. Parent and Buyer shall promptly furnish to the Company all information concerning Parent and Buyer and any of its Affiliates required to be set forth in the EGM Materials. The Company shall provide Buyer Parent and its counsel with a reasonable opportunity to review and comment on the EGM Materials (and any amendments thereto) each time prior to dissemination to the shareholders of the Company and the Company shall include in the EGM Materials all give reasonable and good faith consideration to any comments reasonably proposed made by Buyer Parent and its counsel. The Company shall provide Parent, Buyer and its their counsel, to the extent not prohibited permitted under applicable Applicable Law, with (i) any comments or other communications, whether written or oral, that the Company or its counsel may receive from time to time from Governmental Authorities with respect to the EGM Materials promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (to which response reasonable and good faith consideration shall include all comments reasonably proposed by Buyer and its counselbe given), including by participating with the Company or its counsel in any discussions or meetings with Governmental Authorities to the extent such participation is not prohibited permitted by the applicable Governmental Authority.
(c) The Company shall consult with Buyer Parent regarding the date of the EGM (or any Subsequent EGM) and, unless this Agreement is terminated in accordance with Section 8.01Article 8, shall not cancel the EGM (or any Subsequent EGM) without the prior written consent of BuyerParent; provided that the Company may, on no more than one (1) occasion, following reasonable consultation with BuyerParent, and, to the extent requested in writing by Buyer, the Company shall cancel and reconvene the EGM solely to the extent reasonably necessary (x) to ensure that any supplement or amendment to EGM Materials that the Company BoardBoards, after consultation with outside counsel, reasonably determines determine is necessary to comply with applicable Law Applicable Law, is made available to the Company’s shareholders in advance of the EGM (and any Subsequent EGM) or (y) to solicit additional proxies in favor of the approvals set forth in Section 2.04(a). In the event the EGM is cancelled and reconvened pursuant to the foregoing proviso, the Company shall duly call, give notice of of, and reconvene hold the EGM on a date scheduled by mutual agreement of the Company and Buyer, acting reasonably, or, in the absence of such agreement, as soon as practicable following the date of such cancellation but, in any event, no later than the day that is thirty-five (35) days following the date of such cancellation (or, in the case of a Subsequent EGM, a date that shall be prior to the date of the Expiration Time)cancellation.
(d) The Company shall ensure that the EGM (and any Subsequent EGM) is called, noticed, convened, held and conducted conducted, in compliance in all material respects with all applicable Applicable Law. The adoption of the matters set forth in Section 2.04(a) shall be the only matters that which the Company shall propose to be acted on by the shareholders of the Company at the EGM (and any Subsequent EGM), unless otherwise reasonably proposed by the Company and approved in advance in writing by Buyer Parent (such approval not to be unreasonably withheld, conditioned or delayed).
(e) Notwithstanding anything to the contrary in this Agreement, to the extent that, at the EGM, the Asset Sale Resolutions and/or the Governance Resolutions have not been adopted, the Company shall, following consultation with the Buyer, duly call and give notice of another EGM (the “Subsequent EGM”), which shall take place at a date reasonably acceptable to Buyer and not later than a date that shall be prior to the date of the Expiration Time.
(f) Without limiting the generality of the foregoing, but subject to the Company’s rights to terminate this Agreement in accordance with Section 8.01, the Company agrees that (i) its obligation to duly call, give notice of, convene and hold the EGM (and any Subsequent EGM) in accordance with and subject to the terms hereof and (ii) its obligations pursuant to this Section 2.04, in each case, shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Alternative Acquisition Transaction Proposal (whether or not a Superior Proposal); provided, that the Company shall be permitted to cancel the EGM after an Adverse Recommendation Change in accordance with Section 5.03(e). Unless this Agreement is terminated in accordance with Section 8.01Article 8, the Company agrees that it shall not submit to the vote of the shareholders of the Company any Alternative Acquisition Transaction Proposal (whether or not a Superior Proposal) or any prior to the vote of the shareholders of the Company with respect to the matters relating theretoset forth in this Section 2.04.
(gf) At In connection with the Asset Sale and prior the Second Step Distribution, Parent and Buyer shall provide a guarantee, in a form and substance reasonable and customary in The Netherlands, to the liquidator as to any deficit in the estate of the Company, so as to enable the liquidator to pay the Offer Consideration (in the case of the Offer Consideration, without interest, less any applicable withholding Taxes with respect to the Offer Consideration) by means of an advance liquidation distribution to holders of Shares that were not tendered pursuant to the Offer (including during the Subsequent Offering Period and during the Minority Exit Offering Period). The approval of the Company’s shareholders at the EGM of the Asset Sale (the “Asset Sale Approval”) will be conditional upon the number of Shares tendered pursuant to the Offer (including during the Subsequent Offering Period and any Subsequent during the Minority Exit Offering Period) falling within the Asset Sale Range. At the EGM), the Company shall use its reasonable best efforts to secure the approvals set forth in Section 2.04(a).
Appears in 1 contract
Extraordinary General Meeting. (a) No later than ten (10) weeks As soon as practicable following the Offer Commencement Datedate of this Agreement, the Company shall hold Omega shall, in consultation with Parent:
(i) convene and conduct an extraordinary general meeting of shareholders of Omega (the “EGM”) to:
in accordance with Omega’s Charter Documents and applicable Laws, in order to allow shareholders of Omega to vote on the resolutions (ithe “Resolutions”) provide information regarding required to approve the OfferSale within the meaning of, and in accordance with, section 2:107a of the Dutch Civil Code (the “Shareholder Approval”), and not adjourn, postpone or cancel (or propose the adjournment, postponement or cancellation of) the EGM without the prior written consent of Parent;
(ii) adopt a use commercially reasonable efforts to solicit proxies in favor of the approval of the Resolutions and against any resolution to, subject to (A) the Acceptance Time having occurred and (B) the number submitted by any shareholder of Shares validly tendered in accordance Omega that is inconsistent with the terms Resolutions or the completion of any of the Offer (including Shares tendered during the Subsequent Offering Period, Transactions as it may be extended determined by the Minority Exit Offering Period) and not properly withdrawnOmega Board, together with the Shares owned by Buyer or any of its Affiliates, representing at least eighty percent (80%) of the outstanding Shares (the “Asset Sale Threshold”), approve the asset sale as contemplated by the Asset Sale Documentation (the “Asset Sale”) as required under section 2:107a of the DCCacting reasonably;
(iii) adopt provide Parent with copies of or access to information regarding the EGM generated by any proxy solicitation services firm, as reasonably requested from time to time by Parent;
(iv) consult with Parent in fixing the date of the EGM, give notice to Parent of the EGM and allow Xxxxxx’s Representatives and legal counsel to attend the EGM (solely in an observer capacity);
(v) promptly advise Parent, at such times as Parent may reasonably request and at least on a resolution daily basis on each of the last ten (10) Business Days prior to the end date of the registration period for the EGM, as to the aggregate tally of the proxies received by Omega in respect of the Resolutions; and
(vi) promptly advise Parent of receipt of any communication (written or oral) from any shareholder of Omega or any other securityholder of Omega in opposition to, subject or any recommendation (written or oral) from a proxy advisory firm recommending the shareholders of Omega to not support, any Transaction (Aother than non-substantive communications and other than voting instructions included in a proxy for the EGM) and/or relating to the Acceptance Time having occurredexercise or purported exercise or withdrawal of dissent, appraisal, inquiry or similar rights.
(Bb) the Asset Sale Threshold having been achieved but the Compulsory Acquisition Threshold not having been achieved and (C) the Asset Sale having been completed, (1) dissolve (ontbinden) the Company in accordance with section 2:19 of the DCC and (2) appoint as liquidator Stichting Vereffening NXP, a foundation (stichting) to be incorporated under Dutch Law and approve reimbursement of the liquidator’s reasonable salary and costs (provided that such reimbursement will be subject The Resolutions shall relate solely to the approval of the Independent Directors) Sale by the general meeting of Omega, and (3) appoint an Affiliate the effectiveness of the Company as the custodian of the books and records of the Company in accordance with section 2:24 of the DCC;
(iv) adopt one or more resolutions effective Resolutions shall not be contingent upon the Acceptance Time to provide full and final discharge to each member authorization or approval of the Company Board for their acts any other transaction contemplated by Omega as of management or supervision, as applicable, up to following the date hereof, including any sale or divestiture of any business or assets of Omega and its Subsidiaries other than the EGM; provided that no discharge will be given to any director for acts as a result of fraud (bedrog), gross negligence (grove xxxxxx), or willful misconduct (opzet) of such director;
(v) adopt one or more resolutions effective upon Business and the Closing to appoint the Buyer Directors to replace the resigning members of the Company Board (the “Governance Resolutions”);
(vi) adopt a resolution to, subject to Closing and effective the day immediately following the Closing Date, amend the articles of association of the Company to align the financial year of the Company with the financial year reckoned by Buyer; and
(vii) adopt a resolution to, subject to the Shares having been delisted from the NASDAQ, (A) convert the Company from a public limited liability company (naamloze vennootschap) to a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and (B) amend the Company’s articles of association in connection with the matters described in clause (A)Purchased Equity Interests.
(bc) Promptly after As soon as reasonably practicable following the date of this Agreement, the Company Omega shall prepare appropriate materials for the EGM, including any documents required by applicable securities Law in connection with the EGM (together with any amendments and supplements thereto and any other documents required, the “EGM MaterialsDocumentation”), and Omega shall cause the EGM Documentation to be available in accordance with its Charter Documents and applicable Law, in each case using all reasonable commercial efforts so as to permit the EGM to be held as soon as reasonably practicable as specified in Section 4.21(a)(i).
(d) relating On the date of mailing thereof, Omega shall ensure that the EGM Documentation complies in all material respects with applicable Law, does not contain any Misrepresentation and provides shareholders of Omega with sufficient information to permit them to form a reasoned judgment concerning the matters set forth in Section 2.04(a)to be placed before EGM. Subject to Section 5.03(d)Without limiting the generality of the foregoing, the Company EGM Documentation shall include a statement that the Company Recommendation Omega Board has unanimously determined that the Sale is in the EGM Materials. Buyer best interests of Omega and the Omega Board has unanimously recommended that shareholders of Omega vote in favor of the Resolutions.
(e) Omega shall promptly furnish to the Company all information concerning Buyer and any of its Affiliates required to be set forth in the EGM Materials. The Company shall provide Buyer give Parent and its legal counsel with a reasonable opportunity to review and comment on drafts of the EGM Materials (Documentation and other related documents, and shall give reasonable consideration to any amendments thereto) each time prior comments made by them, and agrees that all information relating solely to dissemination to the shareholders Parent or any of the Company and the Company shall include its Affiliates included in the EGM Materials all comments Documentation must be in a form and content reasonably proposed by Buyer and its counsel. The Company shall provide Buyer and its counsel, satisfactory to the extent not prohibited under applicable Law, with (i) any comments or other communications, whether written or oral, that the Company or its counsel may receive from time to time from Governmental Authorities with respect to the EGM Materials promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (which response shall include all comments reasonably proposed by Buyer and its counsel), including by participating with the Company or its counsel in any discussions or meetings with Governmental Authorities to the extent such participation is not prohibited by the applicable Governmental Authority.
(c) The Company shall consult with Buyer regarding the date of the EGM (or any Subsequent EGM) and, unless this Agreement is terminated in accordance with Section 8.01, shall not cancel the EGM (or any Subsequent EGM) without the prior written consent of Buyer; provided that the Company may, on no more than one (1) occasion, following reasonable consultation with Buyer, and, to the extent requested in writing by Buyer, the Company shall cancel and reconvene the EGM solely to the extent reasonably necessary (x) to ensure that any supplement or amendment to EGM Materials that the Company Board, after consultation with outside counsel, reasonably determines is necessary to comply with applicable Law is made available to the Company’s shareholders in advance of the EGM (and any Subsequent EGM) or (y) to solicit additional proxies in favor of the approvals set forth in Section 2.04(a). In the event the EGM is cancelled and reconvened pursuant to the foregoing proviso, the Company shall duly give notice of and reconvene the EGM on a date scheduled by mutual agreement of the Company and Buyer, acting reasonably, or, in the absence of such agreement, as soon as practicable following the date of such cancellation but, in any event, no later than the day that is thirty-five (35) days following the date of such cancellation (or, in the case of a Subsequent EGM, a date that shall be prior to the date of the Expiration Time).
(d) The Company shall ensure that the EGM (and any Subsequent EGM) is called, noticed, convened, held and conducted in compliance in all material respects with all applicable Law. The adoption of the matters set forth in Section 2.04(a) shall be the only matters that the Company shall propose to be acted on by the shareholders of the Company at the EGM (and any Subsequent EGM), unless otherwise reasonably proposed by the Company and approved in advance in writing by Buyer (such approval not to be unreasonably withheld, conditioned or delayed).
(e) Notwithstanding anything to the contrary in this Agreement, to the extent that, at the EGM, the Asset Sale Resolutions and/or the Governance Resolutions have not been adopted, the Company shall, following consultation with the Buyer, duly call and give notice of another EGM (the “Subsequent EGM”), which shall take place at a date reasonably acceptable to Buyer and not later than a date that shall be prior to the date of the Expiration TimeParent.
(f) Without limiting Parent shall provide Omega with, on a timely basis, all information regarding Parent, its Affiliates and the generality of US/NL Equity Consideration Shares and the foregoing, but subject JV Holdco Equity Consideration Shares to the Company’s rights to terminate this Agreement in accordance with Section 8.01, the Company agrees that (i) its obligation to duly call, give notice of, convene and hold the EGM (and any Subsequent EGM) in accordance with and subject to the terms hereof and (ii) its obligations be issued pursuant to this Section 2.04Agreement, as may be reasonably requested by Omega or as may be required by applicable Laws for inclusion in each case, shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Alternative Acquisition Proposal (whether or not a Superior Proposal). Unless this Agreement is terminated in accordance with Section 8.01, the Company agrees that it shall not submit to the vote of the shareholders of the Company any Alternative Acquisition Proposal (whether or not a Superior Proposal) or any matters relating theretoEGM Documentation.
(g) At and prior to Each Party shall promptly notify the other Party if it becomes aware that the EGM (Documentation contains a Misrepresentation, or otherwise requires an amendment or supplement. The Parties shall cooperate in the preparation of any such amendment or supplement as required or appropriate, and any Subsequent EGM)Omega shall promptly make such amendment or supplement available in the same way as it made the EGM Documentation available and, if required by applicable Laws, file the same with the Canadian Securities Regulatory Authorities, the Company shall use its reasonable best efforts to secure the approvals set forth in Section 2.04(a)SEC or any other Governmental Body as required.
Appears in 1 contract
Extraordinary General Meeting. (a) No later than ten (10) weeks following the Offer Commencement Date, the The Company shall hold an extraordinary general meeting (the “EGM”) as promptly as practicable, but in any event shall use its reasonable best efforts to hold such EGM within twelve (12) weeks following the Offer Commencement Date, to:
(i) provide information regarding the Offer;
(ii) adopt a resolution to, subject to (A) the Acceptance Time having occurred and occurred, (B) the number of Shares validly tendered in accordance with the terms of the Offer (including Shares tendered during the Subsequent Offering Period, as it may be extended by the Minority Exit Offering Period) and not properly withdrawn, together with the Shares owned by Buyer Parent or any of its Affiliates, representing at least eighty percent (80%) of the Company’s issued and outstanding Shares capital (geplaatst en uitstaand kapitaal) (the “Asset Sale Threshold”)) and (C) the Compulsory Acquisition Threshold having not been achieved, approve the asset sale as contemplated by the Asset Sale Documentation (the “Asset Sale”) as required under section Section 2:107a of the DCC;
(iii) adopt a resolution to, subject to (A) the Acceptance Time having occurred, (B) the Asset Sale Threshold having been achieved but the Compulsory Acquisition Threshold not having been achieved and (C) the Asset Sale having been completed, (1) dissolve (ontbinden) the Company in accordance with section Section 2:19 of the DCC and (2) appoint as liquidator Stichting Vereffening NXP, (the “Liquidator”) a foundation (stichting) to be incorporated under Dutch Law and approve reimbursement of the liquidatorLiquidator’s reasonable salary and costs (provided that such reimbursement will shall be subject to the approval of the Independent Directors) and (3) appoint an Affiliate of the Company as the custodian of the books and records of the Company in accordance with section 2:24 of the DCC;
(iv) adopt one or more resolutions effective upon the Acceptance Time to provide full and final discharge to each member of the Company Board for their acts of management or supervision, as applicable, up to the date of the EGM; provided that no discharge will be given to any director for acts as a result of fraud (bedrog), gross negligence (grove xxxxxx), or willful misconduct (opzet) of such director;
(v) adopt one or more resolutions effective upon the Closing to appoint the Buyer Directors to replace the resigning members of the Company Board (the “Governance Resolutions”);
(vi) adopt a resolution to, subject to Closing and effective the day immediately following the Closing Date, amend the articles of association of the Company to align the financial year of the Company with the financial year reckoned by Buyer; and
(vii) adopt a resolution to, subject to the Shares having been delisted from the NASDAQ, (A) convert the Company from a public limited liability company (naamloze vennootschap) to a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and (B) amend the Company’s articles of association in connection with the matters described in clause (A).
(b) Promptly after the date of this Agreement, the Company shall prepare appropriate materials for the EGM (together with any amendments and supplements thereto and any other documents required, the “EGM Materials”) relating to the matters set forth in Section 2.04(a). Subject to Section 5.03(d), the Company shall include the Company Recommendation in the EGM Materials. Buyer shall promptly furnish to the Company all information concerning Buyer and any of its Affiliates required to be set forth in the EGM Materials. The Company shall provide Buyer and its counsel with a reasonable opportunity to review and comment on the EGM Materials (and any amendments thereto) each time prior to dissemination to the shareholders of the Company and the Company shall include in the EGM Materials all comments reasonably proposed by Buyer and its counsel. The Company shall provide Buyer and its counsel, to the extent not prohibited under applicable Law, with (i) any comments or other communications, whether written or oral, that the Company or its counsel may receive from time to time from Governmental Authorities with respect to the EGM Materials promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (which response shall include all comments reasonably proposed by Buyer and its counsel), including by participating with the Company or its counsel in any discussions or meetings with Governmental Authorities to the extent such participation is not prohibited by the applicable Governmental Authority.
(c) The Company shall consult with Buyer regarding the date of the EGM (or any Subsequent EGM) and, unless this Agreement is terminated in accordance with Section 8.01, shall not cancel the EGM (or any Subsequent EGM) without the prior written consent of Buyer; provided that the Company may, on no more than one (1) occasion, following reasonable consultation with Buyer, and, to the extent requested in writing by Buyer, the Company shall cancel and reconvene the EGM solely to the extent reasonably necessary (x) to ensure that any supplement or amendment to EGM Materials that the Company Board, after consultation with outside counsel, reasonably determines is necessary to comply with applicable Law is made available to the Company’s shareholders in advance of the EGM (and any Subsequent EGM) or (y) to solicit additional proxies in favor of the approvals set forth in Section 2.04(a). In the event the EGM is cancelled and reconvened pursuant to the foregoing proviso, the Company shall duly give notice of and reconvene the EGM on a date scheduled by mutual agreement of the Company and Buyer, acting reasonably, or, in the absence of such agreement, as soon as practicable following the date of such cancellation but, in any event, no later than the day that is thirty-five (35) days following the date of such cancellation (or, in the case of a Subsequent EGM, a date that shall be prior to the date of the Expiration Time).
(d) The Company shall ensure that the EGM (and any Subsequent EGM) is called, noticed, convened, held and conducted in compliance in all material respects with all applicable Law. The adoption of the matters set forth in Section 2.04(a) shall be the only matters that the Company shall propose to be acted on by the shareholders of the Company at the EGM (and any Subsequent EGM), unless otherwise reasonably proposed by the Company and approved in advance in writing by Buyer (such approval not to be unreasonably withheld, conditioned or delayed).
(e) Notwithstanding anything to the contrary in this Agreement, to the extent that, at the EGM, the Asset Sale Resolutions and/or the Governance Resolutions have not been adopted, the Company shall, following consultation with the Buyer, duly call and give notice of another EGM (the “Subsequent EGM”), which shall take place at a date reasonably acceptable to Buyer and not later than a date that shall be prior to the date of the Expiration Time.
(f) Without limiting the generality of the foregoing, but subject to the Company’s rights to terminate this Agreement in accordance with Section 8.01, the Company agrees that (i) its obligation to duly call, give notice of, convene and hold the EGM (and any Subsequent EGM) in accordance with and subject to the terms hereof and (ii) its obligations pursuant to this Section 2.04, in each case, shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Alternative Acquisition Proposal (whether or not a Superior Proposal). Unless this Agreement is terminated in accordance with Section 8.01, the Company agrees that it shall not submit to the vote of the shareholders of the Company any Alternative Acquisition Proposal (whether or not a Superior Proposal) or any matters relating thereto.
(g) At and prior to the EGM (and any Subsequent EGM), the Company shall use its reasonable best efforts to secure the approvals set forth in Section 2.04(a).
Appears in 1 contract
Extraordinary General Meeting. (a) No later than ten (10) weeks following On or prior to the Offer Commencement Date, the Company shall duly call, give notice and, as soon as practicable following the date hereof taking into account a notice period of at least 35 calendar days and that notice will not be given until the Pre-Launch Condition has been satisfied or waived (but in any event prior to the Closing), hold an extraordinary general meeting of shareholders (the “EGM”) to:
(i) provide information regarding the Offer;
(ii) adopt a resolution accept resignations from, and provide discharge to, all but two of the existing members of the Boards and, subject to Section 2.04(f) and Section 2.05, appoint such new members to the Boards as designated by Buyer to replace such resigning directors;
(iii) approve the sale by the Company effective as of the Closing, pursuant to a sale and purchase agreement in customary form (an “Asset Sale Agreement”), of all of the assets, including any Tax attributes to the extent transferable, and assumption of all liabilities of the Company (including, at the discretion of Buyer, the Company’s Subsidiaries) to Buyer and/or one or more of its designees for aggregate consideration of (A) a note payable (the Acceptance Time having occurred and (B“Note Payable”) from Buyer or one or more of its designees in an aggregate principal amount equal to the Cash Consideration multiplied by the total number of outstanding Shares validly tendered in accordance with the terms as of the Offer Closing (including Shares tendered during which Note Payable shall be prepayable without penalty or premium but shall require Buyer to pay to the Company, on or promptly following the completion of the Subsequent Offering Period, as it may be extended an amount of the Note Payable equal to the Cash Consideration multiplied by the Minority Exit number of outstanding Shares not tendered in the Offer or the Subsequent Offering Period), (B) and not properly withdrawn, together with the Shares owned by Buyer or any of its Affiliates, representing at least eighty percent (80%) of the outstanding Shares a note (the “Asset Sale ThresholdConvertible Note”) from Buyer convertible into an aggregate amount of CVRs equal to the total number of outstanding Shares as of the Closing (which Convertible Note shall be prepayable without penalty or premium but shall require Buyer to distribute to the Company, on or promptly following the completion of the Subsequent Offering Period, a number of CVRs equal to the number of Shares not tendered in the Offer or the Subsequent Offering Period, (the “Note Conversion”)) and (C) the assumption by Buyer and/or its designees of all liabilities and obligations of the Company (including the Company’s Subsidiaries), approve whether actual, contingent or otherwise, including the asset sale as contemplated by express assumption of all contractual obligations (and also including the Asset Sale Documentation related obligation of Buyer or its designees to fully indemnify and hold harmless the Company with respect to all such assumed liabilities and obligations) (the transaction described in this clause (iii) and the Second Step Distribution, the “Asset Sale”) as required under section 2:107a of the DCC;
(iii) adopt a resolution to, subject to (A) the Acceptance Time having occurred, (B) the Asset Sale Threshold having been achieved but the Compulsory Acquisition Threshold not having been achieved and (C) the Asset Sale having been completed, (1) dissolve (ontbinden) the Company in accordance with section 2:19 of the DCC and (2) appoint as liquidator Stichting Vereffening NXP, a foundation (stichting) to be incorporated under Dutch Law and approve reimbursement of the liquidator’s reasonable salary and costs (provided that such reimbursement will be subject to the approval of the Independent Directors) and (3) appoint an Affiliate of the Company as the custodian of the books and records of the Company in accordance with section 2:24 of the DCC;); and
(iv) adopt one or more resolutions effective resolve upon the Acceptance Time to provide full liquidation and final discharge to each member dissolution of the Company Board for their acts following such Asset Sale with the aim that the proceeds of management or supervisionsuch sale will be distributed by means of a liquidation distribution (which may be an advance distribution, as applicable, up described in Section 2.04(e)) (the “Second Step Distribution”) to the date of the EGM; provided that no discharge will be given to any director for acts as a result of fraud (bedrog), gross negligence (grove xxxxxx), or willful misconduct (opzet) of such director;
(v) adopt one or more resolutions effective upon the Closing to appoint the Buyer Directors to replace the resigning members shareholders of the Company Board such that each holder of Shares that were not tendered in the Offer or during the Subsequent Offering Period shall receive cash and CVRs in an amount equal to the Offer Consideration multiplied by the number of Shares then held by such holder (in the “Governance Resolutions”);
(vi) adopt a resolution to, subject to Closing and effective the day immediately following the Closing Date, amend the articles of association case of the Company to align the financial year of the Company Cash Consideration, without interest, less any applicable withholding taxes with the financial year reckoned by Buyer; and
(vii) adopt a resolution to, subject respect to the Shares having been delisted from the NASDAQ, (A) convert the Company from a public limited liability company (naamloze vennootschap) to a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and (B) amend the Company’s articles of association in connection with the matters described in clause (AOffer Consideration).
(b) Promptly after the date of this Agreement, the Company shall prepare appropriate materials for the EGM (together with any amendments and supplements thereto and any other documents required, the “EGM Materials”) relating to the matters set forth in Section Section 2.04(a). Subject to Section 5.03(dSection 5.03(e) and Section 5.03(f), the Company shall include the Company Recommendation in the EGM Materials. Parent and Buyer shall promptly furnish to the Company all information concerning Parent and Buyer and any of its Affiliates required to be set forth in the EGM Materials. The Company shall provide Buyer Parent and its counsel with a reasonable opportunity to review and comment on the EGM Materials (and any amendments thereto) each time prior to dissemination to the shareholders of the Company and the Company shall include in the EGM Materials all give reasonable and good faith consideration to any comments reasonably proposed made by Buyer Parent and its counsel. The Company shall provide Parent, Buyer and its their counsel, to the extent not prohibited permitted under applicable Applicable Law, with (i) any comments or other communications, whether written or oral, that the Company or its counsel may receive from time to time from Governmental Authorities with respect to the EGM Materials promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (to which response reasonable and good faith consideration shall include all comments reasonably proposed by Buyer and its counselbe given), including by participating with the Company or its counsel in any discussions or meetings with Governmental Authorities to the extent such participation is not prohibited permitted by the applicable Governmental Authority.
(c) The Company shall give Parent no less than three Business Days’ advance notice of the date which shall be set as the “record date” for the EGM. The Company shall consult with Buyer Parent regarding the date of the EGM (or any Subsequent EGM) and, unless this Agreement is terminated in accordance with Section 8.01, and shall not cancel the EGM (or any Subsequent EGM) without the prior written consent of BuyerParent; provided that the Company may, on no more than one (1) occasion, following reasonable consultation with BuyerParent, and, to the extent requested in writing by Buyer, the Company shall cancel and reconvene the EGM solely to the extent reasonably necessary (x) to ensure that any supplement or amendment to EGM Materials that the Company Board, after consultation with outside counsel, reasonably determines is necessary to comply with applicable Law Applicable Law, is made available to the Company’s shareholders in advance of the EGM (and any Subsequent EGM) or (y) to solicit additional proxies in favor of the approvals set forth in Section 2.04(a). In the event the EGM is cancelled and reconvened pursuant to the foregoing proviso, the Company shall duly call, give notice of of, and reconvene hold the EGM on a date scheduled by mutual agreement of the Company and Buyer, acting reasonably, or, in the absence of such agreement, as soon as practicable following the date of such cancellation but, in any event, no later than the day that is thirty-five (35) days following the date of such cancellation (or, in the case of a Subsequent EGM, a date that shall be prior to the date of the Expiration Time)cancellation.
(d) The Company shall ensure that the EGM (and any Subsequent EGM) is called, noticed, convened, held and conducted conducted, in compliance in all material respects with all applicable Applicable Law. The adoption of the matters set forth in Section Section 2.04(a) shall be the only matters that which the Company shall propose to be acted on by the shareholders of the Company at the EGM (and any Subsequent EGM), unless otherwise reasonably proposed by the Company and approved in advance in writing by Buyer (such approval not to be unreasonably withheldParent, conditioned or delayed)in its sole discretion.
(e) Notwithstanding anything to the contrary in this Agreement, to the extent that, at the EGM, the Asset Sale Resolutions and/or the Governance Resolutions have not been adopted, the Company shall, following consultation with the Buyer, duly call and give notice of another EGM (the “Subsequent EGM”), which shall take place at a date reasonably acceptable to Buyer and not later than a date that shall be prior to the date of the Expiration Time.
(f) Without limiting the generality of the foregoing, but subject to the Company’s rights to terminate this Agreement in accordance with Section 8.01foregoing or Section 8.01(d)(i), the Company agrees that (i) its obligation to duly call, give notice of, convene and hold the EGM (and shall not be affected by any Subsequent EGM) in accordance with and subject to the terms hereof Adverse Recommendation Change and (ii) its obligations pursuant to this Section 2.04, in each case, Section 2.04 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Alternative Acquisition Proposal (whether or not a Superior Proposal). Unless this Agreement is terminated in accordance with Section 8.01Article 8, the Company agrees that it shall not submit to the vote of the shareholders of the Company any Alternative Acquisition Proposal (whether or not a Superior Proposal) or any prior to the vote of the shareholders of the Company with respect to the matters relating theretoset forth in this Section 2.04.
(gf) At and prior In connection with the Asset Sale, Buyer shall provide a guarantee to the EGM liquidator as to any deficit in the estate of the Company, so as to enable the liquidator to pay the Offer Consideration (in the case of the Cash Consideration, without interest, less any applicable withholding taxes with respect to the Offer Consideration) by means of an advance liquidation distribution to holders of Shares that were not tendered in the Offer or during the Subsequent Offering Period. The approvals by Company shareholders of the resignations and any Subsequent appointments, the sale of the Company’s assets, the liquidation and dissolution of the Company and the distribution of the liquidation proceeds referred to in Section 2.04(a) (the “Shareholder Approvals”) will be effective as of, and conditional upon the occurrence of, the Closing. At the EGM), the Company shall use its reasonable best efforts to secure the approvals set forth in Section 2.04(a)Shareholder Approvals, such Shareholder Approvals to be effective as of, and conditional upon, the occurrence of the Closing.
Appears in 1 contract
Extraordinary General Meeting. (ai) No later than ten (10) weeks following Buyer or its designee shall have received validly executed and completed irrevocable proxies or powers of attorney from the Offer Commencement Date, Seller Parties and other shareholders of the Company shall hold (including shareholders of record) with respect to Shares comprising an extraordinary general meeting EGM Supermajority and sufficient to validly call an Extraordinary General Meeting of the Company (the “Relevant EGM”) to:
and execute any requisite notice in relation to the Relevant EGM; provided that the conditions set forth in this Section 6.02(c)(i) shall be deemed satisfied if (iA) provide information regarding a Relevant EGM is otherwise called or held or (B) the Offer;shareholders of record constituting an EGM Supermajority shall have issued a letter of notice of a Relevant EGM as sponsored by Blue Ocean Structure Investment Company Ltd.
(ii) adopt a resolution to, subject to (A) the Acceptance Time having occurred and (B) the number Buyer or its designee shall have received from Persons who are shareholders of Shares validly tendered in accordance with the terms record as of the Offer (including Shares tendered during record date of the Subsequent Offering PeriodRelevant EGM, as it may be extended by the Minority Exit Offering Period) validly executed and not properly withdrawncompleted irrevocable proxies or powers of attorney that, together with the Shares owned by Buyer or any of and its Affiliates, representing at least eighty percent (80%) would constitute a Special Resolution Supermajority as of the outstanding Shares (record date of the “Asset Sale Threshold”)Relevant EGM, approve appointing a representative designated by Buyer as such shareholders’ proxy or attorney for the asset sale as contemplated Relevant EGM, voting in favor of all of the resolutions tabled in the Relevant EGM by such Person, which shall comprise resolutions in the form or otherwise consistent with the intent of the proposed resolutions set forth in Exhibit A, and voting against any resolutions tabled by the Asset Sale Documentation (Company; provided that the “Asset Sale”conditions set forth in this Section 6.02(c)(ii) as required under section 2:107a of the DCC;
(iii) adopt a resolution to, subject to shall be deemed satisfied (A) the Acceptance Time having occurred, (B) the Asset Sale Threshold having been achieved but the Compulsory Acquisition Threshold not having been achieved and (C) the Asset Sale having been completed, (1) dissolve (ontbinden) the Company in accordance with section 2:19 of the DCC and (2) appoint as liquidator Stichting Vereffening NXP, a foundation (stichting) to be incorporated under Dutch Law and approve reimbursement of the liquidator’s reasonable salary and costs (provided that such reimbursement will be subject to the approval of the Independent Directors) and (3) appoint an Affiliate of the Company as the custodian of the books and records of the Company in accordance with section 2:24 of the DCC;
(iv) adopt one or more resolutions effective upon the Acceptance Time to provide full and final discharge to each member of the Company Board for their acts of management or supervision, as applicable, up to the date of the EGM; provided that no discharge will be given to any director for acts as a result of fraud (bedrog), gross negligence (grove xxxxxx), or willful misconduct (opzet) of such director;
(v) adopt one or more resolutions effective upon the Closing to appoint the Buyer Directors to replace the resigning members of the Company Board (the “Governance Resolutions”);
(vi) adopt a resolution to, subject to Closing and effective the day immediately following the Closing Date, amend the articles of association of the Company to align the financial year of the Company with the financial year reckoned by Buyer; and
(vii) adopt a resolution to, subject to the Shares having been delisted from the NASDAQ, (A) convert the Company from a public limited liability company (naamloze vennootschap) to a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and (B) amend the Company’s articles of association in connection with the matters described in clause (A).
(b) Promptly after the date of this Agreement, the Company shall prepare appropriate materials for the EGM (together with any amendments and supplements thereto and any other documents required, the “EGM Materials”) relating to the matters set forth in Section 2.04(a). Subject to Section 5.03(d), the Company shall include the Company Recommendation in the EGM Materials. Buyer shall promptly furnish to the Company all information concerning Buyer and any of its Affiliates required to be set forth in the EGM Materials. The Company shall provide Buyer and its counsel with a reasonable opportunity to review and comment on the EGM Materials (and any amendments thereto) each time prior to dissemination to the shareholders of the Company and the Company shall include in the EGM Materials all comments reasonably proposed by Buyer and its counsel. The Company shall provide Buyer and its counsel, to the extent not prohibited under applicable Law, with (i) any comments or other communications, whether written or oral, that the Company or its counsel may receive from time to time from Governmental Authorities with respect to the EGM Materials promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (which response shall include all comments reasonably proposed by Buyer and its counsel), including by participating with the Company or its counsel in any discussions or meetings with Governmental Authorities to the extent such participation is not prohibited proxies or powers of attorney are otherwise delivered in a form requested by the applicable Governmental Authority.
(c) The Company shall consult with Buyer regarding the date or its Affiliates in a solicitation of the EGM (or any Subsequent EGM) and, unless this Agreement is terminated in accordance with Section 8.01, shall not cancel the EGM (or any Subsequent EGM) without the prior written consent of Buyer; provided that the Company may, on no more than one (1) occasion, following reasonable consultation with Buyer, and, to the extent requested in writing by Buyer, the Company shall cancel and reconvene the EGM solely to the extent reasonably necessary (x) to ensure that any supplement or amendment to EGM Materials that the Company Board, after consultation with outside counsel, reasonably determines is necessary to comply with applicable Law is made available to the Company’s shareholders in advance (including shareholders of the EGM (and any Subsequent EGMrecord) or (yB) to solicit additional proxies a Special Resolution Supermajority otherwise votes in favor of the approvals set forth in Section 2.04(a). In the event the EGM is cancelled and reconvened pursuant to the foregoing proviso, the Company shall duly give notice of and reconvene the EGM on a date scheduled by mutual agreement of the Company and Buyer, acting reasonably, or, in the absence of such agreement, as soon as practicable following the date of such cancellation but, in any event, no later than the day that is thirty-five (35) days following the date of such cancellation (or, in the case of a Subsequent EGM, a date that shall be prior to the date of the Expiration Time).
(d) The Company shall ensure that the EGM (and any Subsequent EGM) is called, noticed, convened, held and conducted in compliance in all material respects with all applicable Law. The adoption of the matters set forth in Section 2.04(a) shall be the only matters that the Company shall propose to be acted on by the shareholders of the Company at the EGM (and any Subsequent EGM), unless otherwise reasonably proposed by the Company and approved in advance in writing by Buyer (such approval not to be unreasonably withheld, conditioned or delayed).
(e) Notwithstanding anything to the contrary in this Agreement, to the extent that, at the EGM, the Asset Sale Resolutions and/or the Governance Resolutions have not been adopted, the Company shall, following consultation with the Buyer, duly call and give notice of another EGM (the “Subsequent EGM”), which shall take place at a date reasonably acceptable to Buyer and not later than a date that shall be prior to the date of the Expiration TimeRelevant EGM.
(f) Without limiting the generality of the foregoing, but subject to the Company’s rights to terminate this Agreement in accordance with Section 8.01, the Company agrees that (i) its obligation to duly call, give notice of, convene and hold the EGM (and any Subsequent EGM) in accordance with and subject to the terms hereof and (ii) its obligations pursuant to this Section 2.04, in each case, shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Alternative Acquisition Proposal (whether or not a Superior Proposal). Unless this Agreement is terminated in accordance with Section 8.01, the Company agrees that it shall not submit to the vote of the shareholders of the Company any Alternative Acquisition Proposal (whether or not a Superior Proposal) or any matters relating thereto.
(g) At and prior to the EGM (and any Subsequent EGM), the Company shall use its reasonable best efforts to secure the approvals set forth in Section 2.04(a).
Appears in 1 contract
Samples: Stock Purchase Agreement (Blue Ocean Structure Investment Co LTD)
Extraordinary General Meeting. (a) No later than ten (10) weeks following On or prior to the Offer Commencement Date, the Company shall duly call, give notice and, as soon as practicable following the date hereof taking into account a notice period of at least 35 calendar days and that notice will not be given until the Pre-Launch Condition has been satisfied or waived (but in any event prior to the Closing), hold an extraordinary general meeting of shareholders (the “EGM”) to:
(i) provide information regarding the Offer;
(ii) adopt a resolution accept resignations from, and provide discharge to, all but two of the existing members of the Boards and, subject to Section 2.04(f) and Section 2.05, appoint such new members to the Boards as designated by Buyer to replace such resigning directors;
(iii) approve the sale by the Company effective as of the Closing, pursuant to a sale and purchase agreement in customary form (an “Asset Sale Agreement”), of all of the assets, including any Tax attributes to the extent transferable, and assumption of all liabilities of the Company (including, at the discretion of Buyer, the Company’s Subsidiaries) to Buyer and/or one or more of its designees for aggregate consideration of
(A) a note payable (the Acceptance Time having occurred and (B“Note Payable”) from Buyer or one or more of its designees in an aggregate principal amount equal to the Cash Consideration multiplied by the total number of outstanding Shares validly tendered in accordance with the terms as of the Offer Closing (including Shares tendered during which Note Payable shall be prepayable without penalty or premium but shall require Buyer to pay to the Company, on or promptly following the completion of the Subsequent Offering Period, as it may be extended an amount of the Note Payable equal to the Cash Consideration multiplied by the Minority Exit number of outstanding Shares not tendered in the Offer or the Subsequent Offering Period), (B) and not properly withdrawn, together with the Shares owned by Buyer or any of its Affiliates, representing at least eighty percent (80%) of the outstanding Shares a note (the “Asset Sale ThresholdConvertible Note”) from Buyer convertible into an aggregate amount of CVRs equal to the total number of outstanding Shares as of the Closing (which Convertible Note shall be prepayable without penalty or premium but shall require Buyer to distribute to the Company, on or promptly following the completion of the Subsequent Offering Period, a number of CVRs equal to the number of Shares not tendered in the Offer or the Subsequent Offering Period, (the “Note Conversion”)) and (C) the assumption by Buyer and/or its designees of all liabilities and obligations of the Company (including the Company’s Subsidiaries), approve whether actual, contingent or otherwise, including the asset sale as contemplated by express assumption of all contractual obligations (and also including the Asset Sale Documentation related obligation of Buyer or its designees to fully indemnify and hold harmless the Company with respect to all such assumed liabilities and obligations) (the transaction described in this clause (iii) and the Second Step Distribution, the “Asset Sale”) as required under section 2:107a of the DCC;
(iii) adopt a resolution to, subject to (A) the Acceptance Time having occurred, (B) the Asset Sale Threshold having been achieved but the Compulsory Acquisition Threshold not having been achieved and (C) the Asset Sale having been completed, (1) dissolve (ontbinden) the Company in accordance with section 2:19 of the DCC and (2) appoint as liquidator Stichting Vereffening NXP, a foundation (stichting) to be incorporated under Dutch Law and approve reimbursement of the liquidator’s reasonable salary and costs (provided that such reimbursement will be subject to the approval of the Independent Directors) and (3) appoint an Affiliate of the Company as the custodian of the books and records of the Company in accordance with section 2:24 of the DCC;); and
(iv) adopt one or more resolutions effective resolve upon the Acceptance Time to provide full liquidation and final discharge to each member dissolution of the Company Board for their acts following such Asset Sale with the aim that the proceeds of management or supervisionsuch sale will be distributed by means of a liquidation distribution (which may be an advance distribution, as applicable, up described in Section 2.04(e)) (the “Second Step Distribution”) to the date of the EGM; provided that no discharge will be given to any director for acts as a result of fraud (bedrog), gross negligence (grove xxxxxx), or willful misconduct (opzet) of such director;
(v) adopt one or more resolutions effective upon the Closing to appoint the Buyer Directors to replace the resigning members shareholders of the Company Board such that each holder of Shares that were not tendered in the Offer or during the Subsequent Offering Period shall receive cash and CVRs in an amount equal to the Offer Consideration multiplied by the number of Shares then held by such holder (in the “Governance Resolutions”);
(vi) adopt a resolution to, subject to Closing and effective the day immediately following the Closing Date, amend the articles of association case of the Company to align the financial year of the Company Cash Consideration, without interest, less any applicable withholding taxes with the financial year reckoned by Buyer; and
(vii) adopt a resolution to, subject respect to the Shares having been delisted from the NASDAQ, (A) convert the Company from a public limited liability company (naamloze vennootschap) to a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and (B) amend the Company’s articles of association in connection with the matters described in clause (AOffer Consideration).
(b) Promptly after the date of this Agreement, the Company shall prepare appropriate materials for the EGM (together with any amendments and supplements thereto and any other documents required, the “EGM Materials”) relating to the matters set forth in Section 2.04(a). Subject to Section 5.03(d5.03(e) and Section 5.03(f), the Company shall include the Company Recommendation in the EGM Materials. Parent and Buyer shall promptly furnish to the Company all information concerning Parent and Buyer and any of its Affiliates required to be set forth in the EGM Materials. The Company shall provide Buyer Parent and its counsel with a reasonable opportunity to review and comment on the EGM Materials (and any amendments thereto) each time prior to dissemination to the shareholders of the Company and the Company shall include in the EGM Materials all give reasonable and good faith consideration to any comments reasonably proposed made by Buyer Parent and its counsel. The Company shall provide Parent, Buyer and its their counsel, to the extent not prohibited permitted under applicable Applicable Law, with (i) any comments or other communications, whether written or oral, that the Company or its counsel may receive from time to time from Governmental Authorities with respect to the EGM Materials promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the Company’s response to those comments and to provide comments on that response (to which response reasonable and good faith consideration shall include all comments reasonably proposed by Buyer and its counselbe given), including by participating with the Company or its counsel in any discussions or meetings with Governmental Authorities to the extent such participation is not prohibited permitted by the applicable Governmental Authority.
(c) The Company shall give Parent no less than three Business Days’ advance notice of the date which shall be set as the “record date” for the EGM. The Company shall consult with Buyer Parent regarding the date of the EGM (or any Subsequent EGM) and, unless this Agreement is terminated in accordance with Section 8.01, and shall not cancel the EGM (or any Subsequent EGM) without the prior written consent of BuyerParent; provided that the Company may, on no more than one (1) occasion, following reasonable consultation with BuyerParent, and, to the extent requested in writing by Buyer, the Company shall cancel and reconvene the EGM solely to the extent reasonably necessary (x) to ensure that any supplement or amendment to EGM Materials that the Company Board, after consultation with outside counsel, reasonably determines is necessary to comply with applicable Law Applicable Law, is made available to the Company’s shareholders in advance of the EGM (and any Subsequent EGM) or (y) to solicit additional proxies in favor of the approvals set forth in Section 2.04(a). In the event the EGM is cancelled and reconvened pursuant to the foregoing proviso, the Company shall duly call, give notice of of, and reconvene hold the EGM on a date scheduled by mutual agreement of the Company and Buyer, acting reasonably, or, in the absence of such agreement, as soon as practicable following the date of such cancellation but, in any event, no later than the day that is thirty-five (35) days following the date of such cancellation (or, in the case of a Subsequent EGM, a date that shall be prior to the date of the Expiration Time)cancellation.
(d) The Company shall ensure that the EGM (and any Subsequent EGM) is called, noticed, convened, held and conducted conducted, in compliance in all material respects with all applicable Applicable Law. The adoption of the matters set forth in Section 2.04(a) shall be the only matters that which the Company shall propose to be acted on by the shareholders of the Company at the EGM (and any Subsequent EGM), unless otherwise reasonably proposed by the Company and approved in advance in writing by Buyer (such approval not to be unreasonably withheldParent, conditioned or delayed)in its sole discretion.
(e) Notwithstanding anything to the contrary in this Agreement, to the extent that, at the EGM, the Asset Sale Resolutions and/or the Governance Resolutions have not been adopted, the Company shall, following consultation with the Buyer, duly call and give notice of another EGM (the “Subsequent EGM”), which shall take place at a date reasonably acceptable to Buyer and not later than a date that shall be prior to the date of the Expiration Time.
(f) Without limiting the generality of the foregoing, but subject to the Company’s rights to terminate this Agreement in accordance with foregoing or Section 8.018.01(d)(i), the Company agrees that (i) its obligation to duly call, give notice of, convene and hold the EGM (and shall not be affected by any Subsequent EGM) in accordance with and subject to the terms hereof Adverse Recommendation Change and (ii) its obligations pursuant to this Section 2.04, in each case, 2.04 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Alternative Acquisition Proposal (whether or not a Superior Proposal). Unless this Agreement is terminated in accordance with Section 8.01Article 8, the Company agrees that it shall not submit to the vote of the shareholders of the Company any Alternative Acquisition Proposal (whether or not a Superior Proposal) or any prior to the vote of the shareholders of the Company with respect to the matters relating theretoset forth in this Section 2.04.
(gf) At and prior In connection with the Asset Sale, Buyer shall provide a guarantee to the EGM liquidator as to any deficit in the estate of the Company, so as to enable the liquidator to pay the Offer Consideration (in the case of the Cash Consideration, without interest, less any applicable withholding taxes with respect to the Offer Consideration) by means of an advance liquidation distribution to holders of Shares that were not tendered in the Offer or during the Subsequent Offering Period. The approvals by Company shareholders of the resignations and any Subsequent appointments, the sale of the Company’s assets, the liquidation and dissolution of the Company and the distribution of the liquidation proceeds referred to in Section 2.04(a) (the “Shareholder Approvals”) will be effective as of, and conditional upon the occurrence of, the Closing. At the EGM), the Company shall use its reasonable best efforts to secure the approvals set forth in Section 2.04(a)Shareholder Approvals, such Shareholder Approvals to be effective as of, and conditional upon, the occurrence of the Closing.
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