Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company shall prepare and file with the SEC the preliminary proxy statement relating to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law in connection with the preparation of the Proxy Statement. The information supplied by the Company and Parent, as applicable, for inclusion in the Proxy Statement shall not, at the time the Proxy Statement is first mailed to the stockholders of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein. (b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. (c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement. (d) Subject to Section 5.3 and Section 5.4(e), the Company shall take all action necessary in accordance with applicable Law and the Company’s Organizational Documents to set a record date for, duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) as soon as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company Recommendation in the Proxy Statement and shall solicit, and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting proxies in favor of the adoption of the Merger and this Agreement). (e) The Company shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4. (f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed). (g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Filings; Other Actions. (a) As promptly as reasonably practicable following after the date of this Agreement, but hereof (and in any event within twenty twenty-five (2025) Business Days after the date of this Agreementhereof), the Company shall prepare and file with the SEC the preliminary proxy statement relating Proxy Statement, which shall, subject to Section 5.3, include the Company Stockholders’ Meeting Recommendation, and shall use reasonable best efforts to respond to any comments by the SEC staff in respect of the Proxy Statement as promptly as reasonably practicable after the receipt thereof (together with any amendments or supplements theretothe assistance of Parent and Merger Sub), in each case, in and shall cause the form or forms definitive Proxy Statement to be mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law in connection with the preparation of the Proxy Statement. The information supplied by the Company and Parent, as applicable, for inclusion in the Proxy Statement shall not, at stockholders promptly following the time the Proxy Statement is first mailed cleared by the SEC for mailing to the Company’s stockholders (and in any event within five (5) Business Days after such time). Parent and Merger Sub shall provide to the Company such information concerning themselves and their Affiliates as is customarily included in a proxy statement prepared in connection with a transaction of the type contemplated by this Agreement or as otherwise required by applicable Law, requested by the SEC or its staff or as the Company may reasonably request. Subject to applicable Law, prior to filing or mailing the Proxy Statement or filing any other required filings (or, in each case, any amendment thereof or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall (unless and at the time until a Change of any meeting of Company stockholders to be held Recommendation has occurred or in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary matters described in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (iSection 5.3) provide Parent, its outside legal counsel Parent and its other Representatives counsel with a reasonable opportunity to review and comment on drafts of the Proxy Statement (which comments shall be made promptly) such document or response and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) shall consider in good faith faith, including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all document or response comments reasonably proposed by Parent, Parent or its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statementcounsel. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent the Company or the CompanyParent, or any of their respective Affiliates, officers or directors, is should be discovered by Parent or the Company that a party, which information should be set forth in an amendment or supplement to the Proxy Statement, so that either the Proxy Statement would not include a any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were are made, not misleading, the Party party that discovers such information shall promptly notify the other Parties party and the Company shall, if it determines in good faith that such information should be set forth in an amendment or supplement to the Proxy Statement, correct (with the assistance of Parent) such information, and as promptly as reasonably practicable, prepare and file an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to the extent required by applicable Law, disseminated disseminate same to the stockholders of the Company. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(db) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with applicable Law required by the DGCL and the Company’s Organizational Documents its certificate of incorporation and bylaws to set a record date for, duly call, give notice of, convene and hold a meeting of its stockholders promptly following the mailing of the Proxy Statement for the purpose of obtaining (A) the Company Stockholder Approval (the “Company Stockholders’ Meeting”) as soon as reasonably practicable following and (B) if mutually agreed, if there has not been a Change of Recommendation in accordance with Section 5.3, or at the mailing Company’s election, if there has been a Change of Recommendation in accordance with Section 5.3, a vote upon other matters, it being understood that the Company Meeting may also be the Company’s annual meeting of stockholders, with the record date of the Company Meeting to be selected after reasonable consultation with Parent and such meeting date being held no later than thirty-five (35) days after the dissemination of the Proxy Statement to the Company’s stockholders in accordance with Section 5.4(a) (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first next succeeding Business Day subsequent to such dayDay)). Subject to , in each case unless there has been a Change of Recommendation in accordance with Section 5.3 or this Section 5.4, unless the Company shall have made and (ii) subject to a Company Adverse Recommendation Change, the Company shall include the Company Change of Recommendation in the Proxy Statement and shall solicitaccordance with Section 5.3, and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting solicit from its stockholders proxies in favor of the approval of the adoption of the Merger and this Agreement).
(e) The Company shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following . Notwithstanding anything to the dissemination of contrary in this Agreement, the Proxy Statement to its stockholders. The Company may adjourn adjourn, recess or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (ivv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period , (w) for the absence of adjournment or postponementa quorum, (x) to allow reasonable additional time to solicit additional proxies to the extent the Company shall continue reasonably believes necessary in all respects order to comply with its obligations under this Section 5.4.
(f) Once obtain the Company has established Stockholder Approval, whether or not a record date quorum is present, (y) if required by applicable Law or (z) to allow reasonable additional time for the Company Stockholders’ Meeting, filing and dissemination of any supplemental or amended disclosure which the Board of Directors has determined in good faith is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of (provided that, unless agreed in writing by Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parentor required by applicable Law, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose not postpone or adjourn the Company Meeting more than a total of four (4) times, and all such adjournments, recesses or postponements shall be for periods of no more than ten (10) Business Days each). If the Board of Directors shall have effected a Change of Recommendation in accordance with Section 5.3, then in submitting this Agreement to be acted on by the Company’s stockholders, the Board of Directors may submit this Agreement to the Company’s stockholders at without the Recommendation and may communicate the basis for its lack of recommendation to the Company’s stockholders in the Proxy Statement or an appropriate amendment thereof or supplement thereto. In no event will the record date of the Company Stockholders’ MeetingMeeting be changed without Parent’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), unless required by applicable Law.
Appears in 1 contract
Filings; Other Actions. (a) As Each of Company, Parent and Merger Sub shall use reasonable best efforts to take or cause to be taken such actions as may be required to be taken under the Securities Act, the Exchange Act, any other federal securities Laws, any applicable state securities or “blue sky” Laws and any stock exchange requirements in connection with the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, as promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company parties hereto shall prepare and file cause to be filed with the SEC the preliminary proxy statement relating Proxy Statement and the Form S-4 Registration Statement, in which the Proxy Statement will be included as a prospectus; provided , however , that prior to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation filing of the Proxy Statement and the Form S-4 Registration Statement, Parent shall consult with Company with respect to such filings and shall afford Company and its Representatives reasonable opportunity to comment thereon. The parties hereto shall use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law in connection with the preparation of cause the Proxy StatementStatement to be mailed to Parent’s stockholders, if required, and Company’s stockholders, all as promptly as reasonably practicable after the date on which the Form S-4 Registration Statement is declared effective under the Securities Act (the “ S-4 Effective Date ”). The Table of Contents -20- Company shall provide Parent with any information supplied by the Company and Parent, as applicable, for inclusion in the Proxy Statement shall not, at and the time the Proxy Form S-4 Registration Statement that may be required under applicable Law or that is first mailed to the stockholders of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed requested by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company . Parent shall notify Parent promptly Company of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of from the SEC for amendments or supplements to the Proxy Statement, the Form S-4 Registration Statement or for additional information information, and shall will promptly supply Parent with true and complete to Company copies or, if oral, summary descriptions, of all correspondence between the Company and any of Parent or its Representatives, on the one hand, and the SEC or the staff members of the SECits staff, on the other hand, with respect to the Proxy Statement, the Form S-4 Registration Statement or the transactions contemplated by this AgreementMerger. Each of Company, including the Merger, Parent and provide Parent, its outside legal counsel and its other Representatives a Merger Sub shall use reasonable opportunity best efforts to participate in any discussions or meetings resolve all SEC comments with the SEC (or portions of any such discussions or meetings that relate respect to the Proxy Statement); , the Form S-4 Registration Statement and any other required filings as promptly as practicable after receipt thereof. Each of Company, Parent and Merger Sub agree to correct any information provided that by it for use in the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of Form S-4 Registration Statement, which shall have become false or misleading in any material respect. Company will promptly notify the SEC to the Proxy Statement. If Parent if at any time prior to the Company Stockholders’ Parent Meeting (or any adjournment or postponement thereof) any information relating event should occur which is required by applicable Law to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment of, or a supplement to, the Proxy Statement or the Form S-4 Registration Statement. In such case, the parties will cooperate to promptly prepare and file such amendment or supplement with the SEC to the extent required by applicable Law and will mail such amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that discovers such information shall promptly notify the other Parties Parent’s and an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, Company’s stockholders to the extent required by applicable Law; provided , disseminated however , that prior to the stockholders of the Company. The Company such filing, each party shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC consult with each other party with respect to such amendment or supplement and shall afford each such party and its Representatives reasonable opportunity to comment thereon. Notwithstanding the preliminary Proxy Statementforgoing, no party shall have any obligation to notify the other parties of any matters to the extent that its board of directors or any committee thereof determines in good faith, after consultation with its outside legal counsel, that to do so would be inconsistent with the directors’ exercise of their fiduciary obligations to its stockholders under applicable Law.
(db) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, not sooner than a reasonable period after the S-4 Effective Date, but prior to the Parent Shareholder Meeting, promptly after the S-4 Effective Date, Company shall take all action necessary in accordance with applicable Law the CBCA and the Company’s Organizational Documents Articles of Incorporation and Bylaws to set a record date for, duly give notice of, convene and hold a meeting of its solicit approval by written consent from Company’s stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) as soon as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company Recommendation in the Proxy Statement and shall solicit, and use its reasonable best efforts to obtain, the “ Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting proxies in favor of the adoption of the Merger and this AgreementWritten Consent ”).
(ec) The Company Subject to the other provisions of this Agreement, not sooner than a reasonable period after the S-4 Effective Date, Parent shall cooperate take all action necessary in accordance with the NRS and keep Parent informed on a reasonably current basis regarding its solicitation efforts the Parent’s Articles of Incorporation and voting results following the dissemination of the Proxy Statement Bylaws to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time solicit approval by written consent from Parent’s stockholders for the filing and dissemination purpose of any supplemental or amended disclosure document that obtaining the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) Parent Stockholder Approval (the “Original DateParent Stockholder Written Consent”) there are insufficient shares ). Parent shall, in its capacity as the sole stockholder of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct Merger Sub, approve this Agreement and the business consummation of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4transactions contemplated hereby.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company shall prepare the Proxy Statement, and file with the SEC the preliminary proxy statement relating to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in and Parent shall prepare the form or forms mailed to the Company’s stockholders, the “Proxy Statement”)Schedule 13E-3. Parent and the Company shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law each other in connection with the preparation of the foregoing documents. The Company will use its reasonable best efforts to have the Proxy Statement, and Parent and the Company will use their reasonable best efforts to have the Schedule 13E-3, cleared by the SEC as promptly as practicable after such filing. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s stockholders as promptly as practicable after the Proxy Statement is cleared by the SEC. The Company shall as promptly as practicable notify Parent of the receipt of any oral or written comments from the SEC relating to the Proxy Statement. The information supplied by Company shall cooperate and provide Parent with a reasonable opportunity to review and comment on the Company and Parent, as applicable, for inclusion in draft of the Proxy Statement (including each amendment or supplement thereto), and Parent and the Company shall notcooperate and provide each other with a reasonable opportunity to review and comment on the draft Schedule 13E-3 (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC, prior to filing such with or sending such to the SEC, and Parent and the Company will provide each other with copies of all such filings made and correspondence with the SEC with respect thereto. If at any time prior to the time Effective Time, any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement is first mailed to or the stockholders of Schedule 13E-3 so that the Company and at Proxy Statement or the time of Schedule 13E-3 would not include any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that party which discovers such information shall promptly notify the other Parties and parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to and disseminated by the extent required by applicable Law, disseminated Company to the stockholders of the Company. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(db) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with applicable Law the KGCC (including, not less than 20 days prior to the Company Meeting, notifying each stockholder of record entitled to vote at such meeting that appraisal rights are available under Section 17-6712 of the KGCC) and the Company’s Organizational Documents its articles of incorporation and by-laws to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable following the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (such meeting or any adjournment or postponement thereof, the “Company Stockholders’ Meeting”), and (ii) as soon as reasonably practicable following subject to the mailing Board of the Proxy Statement to Directors of the Company’s stockholders (but in any event within thirty-five days after or the date the SEC staff advises that it has no further comments thereon Special Committee’s withdrawal or that the Company may file and commence mailing modification of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company its Recommendation in the Proxy Statement and shall solicitaccordance with Section 5.3(d), and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting solicit from its stockholders proxies in favor of the adoption approval of this Agreement, the Merger and the other transactions contemplated hereby. Notwithstanding anything in this Agreement).
(e) The Company shall cooperate Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following subject to compliance with Section 7.2, the dissemination Company, regardless of whether the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors (whether or not acting through the Special Committee, if then in existence) has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Lawapproved, (ii) if as of endorsed or recommended an Alternative Proposal or has withdrawn, modified or amended the time that Recommendation, will submit this Agreement for adoption by the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business stockholders of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Samples: Merger Agreement (Kinder Morgan Inc)
Filings; Other Actions. (a) As If the Company Stockholder Approval is required under the MBCA, as promptly as reasonably practicable following the date consummation or expiration of this Agreement, but in any event within twenty (20) Business Days after the date of this AgreementOffer, the Company shall prepare and file with the SEC the preliminary a proxy statement relating (including the letter to the Company Stockholders’ Meeting (together with any amendments or supplements theretostockholders, in each case, in the notice of meeting and form or forms mailed to the Company’s stockholdersof proxy, the “Proxy Statement”). Parent shall cooperate with , which shall, subject to Section 6.3, include the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law in connection with the preparation of the Proxy Statement. The information supplied by the Company and Parent, as applicable, for inclusion in the Proxy Statement shall not, at the time the Proxy Statement is first mailed to the stockholders of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation thereinRecommendation.
(b) The Company shall (i) provide Parent, its outside legal counsel Parent and its other Representatives with counsel shall be given a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing (including each amendment or delivering such documents supplement thereto) before it is filed with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) SEC. The Company shall notify provide Parent promptly of the receipt of and Merger Sub (in writing, if written), and consult with Parent and Merger Sub regarding, any comments (whether written or oral) the Company or its counsel may receive from the SEC or the its staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement as promptly as practicable after receipt of such comments. Parent and its counsel shall be given a reasonable opportunity to review any such written and oral comments and proposed responses. The Company and Parent shall each use its reasonable best efforts to promptly provide responses to the SEC with respect to all comments received on the Proxy Statement by the SEC and the Company shall cause the definitive Proxy Statement to be mailed promptly after the SEC staff advises it that it has no further comments thereon or that the Company may commence mailing the Proxy Statement. Subject to applicable Law, the Company and Parent (with respect to itself and Merger Sub) shall each, upon request of the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement or any other statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any third party and/or Governmental Entity in connection with the Offer, the Merger and the other transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(dc) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, if the Company Stockholder Approval is required under the MBCA, the Company shall (i) take all action necessary in accordance with applicable Law the MBCA and the Company’s Organizational Documents its Articles of Incorporation and Third Amended and Restated Bylaws to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining voting upon the Company Stockholder Approval approval and adoption of this Agreement, including the Merger (the “Company Stockholders’ Stockholders Meeting”) ), as soon as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company Recommendation in the Proxy Statement and shall solicitAcceptance Time, and (ii) subject to a Change of Recommendation, use its all reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting solicit from its stockholders proxies in favor of the adoption of this Agreement. Notwithstanding the forgoing, if a Short Form Merger may be effected in accordance with Section 2.8 and Section 711 of the MBCA, the parties hereto agree to take all necessary and appropriate action to cause the Merger and this Agreement).
(e) The to become effective on the dates specified in Section 2.2 without a Company shall cooperate Stockholders Meeting, in accordance with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination Section 711 of the Proxy Statement to its stockholdersMBCA. The Company may adjourn or postpone From and after the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors has determined Acceptance Time, unless this Agreement is validly terminated in good faith (after consultation accordance with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponementSection 8.1, the Company shall continue in all respects to comply with its obligations under this Section 5.4.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of submit this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s its stockholders at the Company Stockholders’ MeetingStockholders Meeting even if the Board of Directors shall have effected a Change of Recommendation or Intervening Event Change of Recommendation.
Appears in 1 contract
Samples: Merger Agreement (X Rite Inc)
Filings; Other Actions. (a) As Each of Company, Parent and Merger Sub shall use reasonable best efforts to take or cause to be taken such actions as may be required to be taken under the Securities Act, the Exchange Act, any other federal securities Laws, any applicable state securities or “blue sky” Laws and any stock exchange requirements in connection with the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, as promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company parties hereto shall prepare and file cause to be filed with the SEC the preliminary proxy statement relating Proxy Statement and the Form S-4 Registration Statement, in which the Proxy Statement will be included as a prospectus; provided , however , that prior to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation filing of the Proxy Statement and the Form S-4 Registration Statement, Parent shall consult with Company with respect to such filings and shall afford Company and its Representatives reasonable opportunity to comment thereon. The parties hereto shall use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law in connection with the preparation of cause the Proxy StatementStatement to be mailed to Parent’s stockholders, if required, and Company’s stockholders, all as promptly as reasonably practicable after the date on which the Form S-4 Registration Statement is declared effective under the Securities Act (the “ S-4 Effective Date ”). The Company shall provide Parent with any information supplied by the Company and Parent, as applicable, for inclusion in the Proxy Statement shall not, at and the time the Proxy Form S-4 Registration Statement that may be required under applicable Law or that is first mailed to the stockholders of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed requested by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company . Parent shall notify Parent promptly Company of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of from the SEC for amendments or supplements to the Proxy Statement, the Form S-4 Registration Statement or for additional information information, and shall will promptly supply Parent with true and complete to Company copies or, if oral, summary descriptions, of all correspondence between the Company and any of Parent or its Representatives, on the one hand, and the SEC or the staff members of the SECits staff, on the other hand, with respect to the Proxy Statement, the Form S-4 Registration Statement or the transactions contemplated by this AgreementMerger. Each of Company, including the Merger, Parent and provide Parent, its outside legal counsel and its other Representatives a Merger Sub shall use reasonable opportunity best efforts to participate in any discussions or meetings resolve all SEC comments with the SEC (or portions of any such discussions or meetings that relate respect to the Proxy Statement); , the Form S-4 Registration Statement and any other required filings as promptly as practicable after receipt thereof. Each of Company, Parent and Merger Sub agree to correct any information provided that by it for use in the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of Form S-4 Registration Statement, which shall have become false or misleading in any material respect. Company will promptly notify the SEC to the Proxy Statement. If Parent if at any time prior to the Company Stockholders’ Parent Meeting (or any adjournment or postponement thereof) any information relating event should occur which is required by applicable Law to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment of, or a supplement to, the Proxy Statement or the Form S-4 Registration Statement. In such case, the parties will cooperate to promptly prepare and file such amendment or supplement with the SEC to the extent required by applicable Law and will mail such amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that discovers such information shall promptly notify the other Parties Parent’s and an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, Company’s stockholders to the extent required by applicable Law; provided , disseminated however , that prior to the stockholders of the Company. The Company such filing, each party shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC consult with each other party with respect to such amendment or supplement and shall afford each such party and its Representatives reasonable opportunity to comment thereon. Notwithstanding the preliminary Proxy Statementforgoing, no party shall have any obligation to notify the other parties of any matters to the extent that its board of directors or any committee thereof determines in good faith, after consultation with its outside legal counsel, that to do so would be inconsistent with the directors’ exercise of their fiduciary obligations to its stockholders under applicable Law.
(db) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, not sooner than a reasonable period after the S-4 Effective Date, but prior to the Parent Shareholder Meeting, promptly after the S-4 Effective Date, Company shall take all action necessary in accordance with applicable Law the CBCA and the Company’s Organizational Documents Articles of Incorporation and Bylaws to set a record date for, duly give notice of, convene and hold a meeting of its solicit approval by written consent from Company’s stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) as soon as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company Recommendation in the Proxy Statement and shall solicit, and use its reasonable best efforts to obtain, the “ Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting proxies in favor of the adoption of the Merger and this AgreementWritten Consent ”).
(ec) The Company Subject to the other provisions of this Agreement, not sooner than a reasonable period after the S-4 Effective Date, Parent shall cooperate take all action necessary in accordance with the NRS and keep Parent informed on a reasonably current basis regarding its solicitation efforts the Parent’s Articles of Incorporation and voting results following the dissemination of the Proxy Statement Bylaws to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time solicit approval by written consent from Parent’s stockholders for the filing and dissemination purpose of any supplemental or amended disclosure document that obtaining the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) Parent Stockholder Approval (the “Original DateParent Stockholder Written Consent”) there are insufficient shares ). Parent shall, in its capacity as the sole stockholder of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct Merger Sub, approve this Agreement and the business consummation of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4transactions contemplated hereby.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company shall prepare the Proxy Statement, and file with the SEC the preliminary proxy statement relating to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in and Parent shall prepare the form or forms mailed to the Company’s stockholders, the “Proxy Statement”)Schedule 13E-3. Parent and the Company shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law each other in connection with the preparation of the foregoing documents. The Company will use its reasonable best efforts to have the Proxy Statement, and Parent and the Company will use their reasonable best efforts to have the Schedule 13E-3, cleared by the SEC as promptly as practicable after such filing. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company's shareholders as promptly as practicable after the Proxy Statement is cleared by the SEC. The Company shall as promptly as practicable notify Parent of the receipt of any oral or written comments from the SEC relating to the Proxy Statement. The information supplied by Company shall cooperate and provide Parent with a reasonable opportunity to review and comment on the Company and Parent, as applicable, for inclusion in draft of the Proxy Statement (including each amendment or supplement thereto), and Parent and the Company shall notcooperate and provide each other with a reasonable opportunity to review and comment on the draft Schedule 13E-3 (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC, prior to filing such with or sending such to the SEC, and Parent and the Company will provide each other with copies of all such filings made and correspondence with the SEC with respect thereto. If at any time prior to the time Effective Time, any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement is first mailed to or the stockholders of Schedule 13E-3 so that the Company and at Proxy Statement or the time of Schedule 13E-3 would not include any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that party which discovers such information shall promptly notify the other Parties and parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, and disseminated by the Company to the extent required by applicable Law, disseminated to the stockholders shareholders of the Company. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(db) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with applicable Law the TBCA and the Company’s Organizational Documents its articles of incorporation and bylaws to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) shareholders as soon promptly as reasonably practicable following the mailing of the Proxy Statement for the purpose of obtaining the Company Shareholder Approval (such meeting or any adjournment or postponement thereof, the "Company Meeting"), and (ii) subject to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing Board of Directors of the definitive Proxy Statement (and if such day is not a Business Day, on Company's or the first Business Day subsequent to such day)). Subject to Section 5.3 Special Committee's withdrawal or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company modification of its Recommendation in the Proxy Statement and shall solicitaccordance with Section 5.3(d), and use its all reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting solicit from its shareholders proxies in favor of the adoption approval of this Agreement, the Merger and the other transactions contemplated hereby. Notwithstanding anything in this Agreement).
(e) The Company shall cooperate Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following subject to compliance with Section 7.2, the dissemination Company, regardless of whether the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors (whether or not acting through the Special Committee, if then in existence) has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Lawapproved, (ii) if as of endorsed or recommended an Alternative Proposal or has withdrawn, modified or amended the time that Recommendation, will submit this Agreement for approval by the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business shareholders of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any at such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4meeting.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Samples: Merger Agreement (Crane James R)
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company shall prepare and file with the SEC the preliminary proxy statement relating to Proxy Statement (but in any event within 20 Business Days after the date hereof), and Parent and the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law each other in connection with the preparation of the Proxy Statement. The information supplied by the Company and Parent, as applicable, for inclusion in will use its reasonable best efforts to have the Proxy Statement shall not, at cleared by the time staff of the SEC as promptly as reasonably practicable after such filing. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s shareholders as promptly as reasonably practicable after the Proxy Statement is first mailed cleared by the staff of the SEC The Company shall as promptly as reasonably practicable notify Parent of the receipt of any oral or written comments from the staff of the SEC relating to the stockholders Proxy Statement. The Company shall cooperate and provide Parent with a reasonable opportunity to review and comment on, (i) the draft of the Proxy Statement (including each amendment or supplement thereto) and (ii) all written responses to requests for additional information by and replies to written comments of the staff of the SEC, prior to filing of the Proxy Statement with or sending such to the SEC, and the Company will provide to Parent copies of all such filings made and at the time of any meeting of Company stockholders to be held in connection correspondence with the Merger (including SEC or its staff with respect thereto. If at any time prior to the Company Stockholders’ Meeting)Effective Time, contain any untrue statement information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that party which discovers such information shall promptly notify the other Parties and parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, and disseminated by the Company to the extent required by applicable Law, disseminated to the stockholders shareholders of the Company. .
(b) The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(di) Subject to Section 5.3 and Section 5.4(e), the Company shall take all action necessary in accordance with applicable Law the TBCA and the Company’s Organizational Documents Company Charter and the by-laws of the Company (the “By-laws”) to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders shareholders as promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC for the purpose of obtaining the Company Stockholder Shareholder Approval (such meeting or any adjournment or postponement thereof, the “Company Stockholders’ Meeting”), and (ii) as soon as reasonably practicable following subject to the mailing Board of the Proxy Statement to Directors of the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon withdrawal or that the Company may file and commence mailing modification of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company its Recommendation in the Proxy Statement and shall solicitaccordance with Section 5.2(d), and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting solicit from its shareholders proxies in favor of the adoption and approval of this Agreement, the Merger and this Agreement).
(e) The Company shall cooperate with the other transactions contemplated hereby and keep Parent informed on a reasonably current basis regarding include its solicitation efforts and voting results following the dissemination of Recommendation in the Proxy Statement Statement. Notwithstanding anything in this Agreement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to allow time for compliance with Section 7.2, the filing and dissemination Company, regardless of any supplemental or amended disclosure document that whether the Company Board of Directors has determined approved, endorsed or recommended an Alternative Proposal or has withdrawn, modified or amended the Recommendation, but in good faith (after consultation compliance with its outside legal counsel) is required to be filed and disseminated under applicable Lawthe TBCA, (ii) if as of will submit this Agreement for adoption by the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business shareholders of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but and in any event within twenty (20) 25 Business Days after the date of this Agreementhereof, the Company shall prepare and file with the SEC the preliminary proxy statement relating to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Parent and Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law in connection with the preparation of the Proxy Statement. The information supplied by Company will respond promptly to any comments from the Company and ParentSEC or the staff of the SEC. No filing of, as applicableor amendment or supplement to, for inclusion in the Proxy Statement shall notStatement, at the time the Proxy Statement is first mailed to the stockholders of the Company and at the time of any meeting of Company stockholders to will be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by without Parent’s prior consent (which shall not be unreasonably withheld, conditioned or delayed) and without providing Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with counsel a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filingthereon; provided, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to however, that the Company’s stockholders and (ii) consider , in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations connection with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change, may amend or supplement the Proxy Statement to effect such change (it being understood that any such amendment or supplement shall solely contain (i) such Company Adverse Recommendation Change, (ii) a statement of the reasons of the Company Board of Directors for making such Company Adverse Recommendation Change made and (iii) such other information as the Company believes is necessary to be included in accordance with such amendment or supplement and, in such event, the right of consent set forth in this Section 5.3.
(c5.4(a) shall not apply). The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity . The Proxy Statement will comply as to participate form in any discussions or meetings all material respects with the SEC (or portions requirements of any such discussions or meetings that relate the Exchange Act. The Company shall use reasonable best efforts to cause the Proxy Statement); provided that , at and from the date it is first mailed to the stockholders of the Company shall until the Company Stockholders’ Meeting, not have such obligations with respect to contain any Proxy Statement and other documents and communications relating untrue statement of a material fact or omit to a Company Adverse Recommendation Change made state any material fact required to be stated therein or necessary in accordance with Section 5.3. The Company shallorder to make the statements therein, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff in light of the SEC to the Proxy Statementcircumstances under which they were made, not misleading. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that which should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party party that discovers such information shall promptly notify the other Parties parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. The Company shall will cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, stockholders as promptly as reasonably practicable (and in any event within five Business Days) after the date of the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy StatementStatement (such date, the “Clearance Date”).
(db) Subject to Section 5.3 5.3(f) and Section 5.4(e5.4(c), the Company shall take all action necessary in accordance with applicable Law Laws and the Company’s Company Organizational Documents to set a record date for, duly give notice of, convene and and, not later than 30 Business Days following the Clearance Date, hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) ). Except as soon as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that expressly permitted by Section 5.3, the Company may file and commence mailing Board of the definitive Proxy Statement Directors (and if such day is or any committee thereof) shall not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4make any Company Adverse Recommendation Change and, unless the Company shall have made a Company Adverse Recommendation ChangeChange in accordance with the terms of this Agreement, the Company shall include the Company Recommendation in the Proxy Statement and shall solicit, and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting proxies in favor of the adoption of the Merger and this Agreement)Agreement and ensuring that all proxies so solicited are solicited in compliance with all applicable Laws and the rules of the New York Stock Exchange) and otherwise comply with all legal requirements applicable to the Company Stockholders’ Meeting.
(ec) The Company shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable LawLaws, (ii) if as of the time that which the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent)obtained, or (iv) with the prior written consent of Parent; provided that in the case of clauses (ii) and (iii), each such adjournment or postponement shall be for a period of no more than 10 Business Days from the most recent scheduled meeting date and (x) without the consent of Parent (which consent shall not to be unreasonably withheld, conditioned or delayed), no such adjournment or postponement shall be to a date that is later than seven months from the date of this Agreement but (y) in any event, no such adjournment or postponement shall be to a date that is later than eight months from the date of this Agreement. During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under Section 5.3 and this Section 5.4.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without . Without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural mattersmatters of procedure and matters required by applicable Law to be voted on by the Company’s stockholders in connection with the adoption of this Agreement) that the Company may shall propose to be acted on by the Company’s stockholders of the Company at the Company Stockholders’ Meeting.
Appears in 1 contract
Samples: Merger Agreement (Airgas Inc)
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company shall prepare and file with the SEC the preliminary proxy statement relating to Proxy Statement. The Company shall not file the Company Stockholders’ Meeting Proxy Statement (together with or any amendments or supplements thereto) with the SEC without first providing Parent and its counsel a reasonable opportunity to review and comment thereon, and the Company shall give due consideration to, and consider in each casegood faith, in the form all reasonable additions, deletions or forms mailed to the Company’s stockholders, the “Proxy Statement”)changes suggested by Parent and its counsel. Parent shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to shall furnish all information concerning Parent, Teton Merger Sub and the Parent Restructuring Entities (and their Representatives respective Affiliates, including for this purpose the Investors and their respective Affiliates) that is reasonably requested by the Company or required by applicable Law in connection with the preparation of the Proxy Statement. The information supplied by Company shall respond promptly to any comments from the Company and Parent, as applicable, for inclusion in SEC or the Proxy Statement shall not, at the time the Proxy Statement is first mailed to the stockholders staff of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) SEC. The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity . The Proxy Statement shall comply as to participate form in any discussions or meetings all material respects with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the applicable requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy StatementExchange Act. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent (or any other Parent Restructuring Entities) or the Company, or any of their respective Affiliates, officers or directors, or the Investors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party party that discovers such information shall promptly notify the other Parties parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, stockholders as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy StatementStatement (such date, the “Clearance Date”) (but in any event within five (5) Business Days thereafter).
(db) Subject to Section 5.3 6.3(e), Section 6.3(f) and Section 5.4(e6.4(c), the Company shall take all action necessary in accordance with applicable Law and the Company’s Company Organizational Documents to to, following consultation with Parent, set a record date for, duly give notice of, convene and hold a meeting of its stockholders following the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) as soon as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day))Clearance Date. Subject to Section 5.3 or this Section 5.4, unless Unless the Company shall have made a Company Adverse Recommendation ChangeChange in accordance with Section 6.3(e) or Section 6.3(f), the Company shall include the Company Recommendation in the Proxy Statement and shall solicit, and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting proxies in favor of the adoption of the Merger and this Agreement).
(ec) The Company shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that if the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under adjourn or postpone the Company Stockholders’ Meeting by applicable Law, order or a request from the SEC or the review or official interpretation of the SEC Staff, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed). Without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting will not be postponed or adjourned (A) by more than ten (10) days at a time, or (B) with respect to Section 6.4(c)(i), by more than 30 days after the date on which the Company Stockholders’ Meeting was (or was required to be) originally scheduled. In no event will the record date of the Company Stockholders’ Meeting be changed without the Parent’s prior written consent of Parent (such which consent shall not to be unreasonably withheld, conditioned or delayed).
(g) , unless required by applicable Law or the Company’s bylaws. Without the prior written consent of ParentParent (which shall not be unreasonably withheld, conditioned or delayed), the adoption of this Agreement shall be the only matter (other than related procedural mattersmatters of procedure and matters required by applicable Law to be voted on by the Company’s stockholders in connection with the adoption of this Agreement) that the Company may shall propose to be acted on by the Company’s stockholders of the Company at the Company Stockholders’ Meeting.
Appears in 1 contract
Samples: Merger Agreement (Tegna Inc)
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20i) Business Days after the date of this Agreement, the Company shall prepare the Proxy Statement, which shall, subject to Section 6.4, include the Recommendation and file with (ii) Parent shall furnish all information concerning itself and its Affiliates that is required to be included in the Proxy Statement.
(b) The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any written request from the preliminary proxy statement SEC or its staff for amendments or supplements to the Proxy Statement, and the Company, on the one hand, and Parent, on the other hand, shall, and Parent shall cause its Affiliates to, provide the other(s) with copies of all correspondence between it and its Representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of the Proxy Statement and or the transactions contemplated hereby. The Company shall use its reasonable best efforts to furnish (i) cause the Proxy Statement to comply as to form in all information concerning material respects with the requirements of the Exchange Act applicable thereto and (ii) respond (with the assistance of, and after consultation with, Parent, Merger Sub and as provided by this Section 6.5(b)) as promptly as practicable to any comments of the SEC with respect to the Proxy Statement. If, at any time prior to the Company Meeting, any information relating to the Company, Parent or any of their Representatives that respective Affiliates, officers or directors is reasonably requested discovered by the Company or required by applicable Law Parent which should be set forth in connection with the preparation of the Proxy Statement. The information supplied by the Company and Parent, as applicable, for inclusion in an amendment or supplement to the Proxy Statement shall not, at the time so that the Proxy Statement is first mailed to or the stockholders of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), other filings shall not contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party party that discovers such information shall promptly notify the other Parties parties thereof, and an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. The Company shall cause Prior to the filing or mailing of the Proxy Statement (or any amendment or supplement thereto) or responding to be mailed any SEC comments on the Proxy Statement, each of the Company, on the one hand, and Parent and its Affiliates, on the other hand, shall (A) provide each other with a reasonable opportunity to review and comment on the Proxy Statement and all amendments or supplements to the foregoing documents and (B) consider in good faith such comments reasonably proposed by the Company’s stockholders, in definitive formon the one hand, or Parent and its Affiliates, on the other hand, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statementapplicable.
(dc) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with applicable Law (including the DGCL) and the Company’s Organizational Documents its charter and bylaws to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable after the Proxy Statement is cleared by the SEC, for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”), and (ii) as soon as reasonably practicable following the mailing of the Proxy Statement subject to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that Section 6.4, use reasonable best efforts to obtain the Company may file and commence mailing of Stockholder Approval. Notwithstanding the definitive Proxy Statement (and if such day is not a Business Dayforegoing, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the right to make one or more successive postponements or adjournments of the Company shall include the Company Recommendation in the Proxy Statement and shall solicit, and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting proxies in favor A) for the absence of the adoption of the Merger and this Agreement).
a quorum, (e) The Company shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (iB) to allow reasonable additional time for the filing and dissemination mailing of any supplemental or amended disclosure document that which the Company Board of Directors or any committee thereof has determined in good faith (after consultation with its outside legal counsel) counsel is required to be filed and disseminated reasonably necessary under applicable Law (including fiduciary duty under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person and for such supplemental or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely amended disclosure to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) disseminated and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on reviewed by the Company’s stockholders at prior to the Company Stockholders’ MeetingMeeting or (C) to allow reasonable additional time to solicit additional proxies to the extent the Board of Directors or any committee thereof reasonably believes necessary in order to obtain the Company Stockholder Approval.
Appears in 1 contract
Samples: Merger Agreement (Belk Inc)
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company shall prepare and file with the SEC the Proxy Statement in preliminary proxy statement relating form, which shall, subject to Section 5.3(b), include the Recommendation. Parent and the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law each other in connection with the preparation of the foregoing document. The Company will use its reasonable best efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after such filing. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the holders of Company Common Stock Agreement and Plan of Merger as promptly as practicable after the Proxy Statement is cleared by the SEC. The Company shall as promptly as practicable notify Parent of the receipt of any oral or written comments from the SEC relating to the Proxy Statement. The Company shall (i) cooperate and provide Parent with a reasonable opportunity to review and comment on the drafts of the preliminary and definitive Proxy Statements (including each amendment or supplement thereto), each Company SEC Document to be filed after the date of this Agreement, and all responses to requests for additional information supplied by and replies to comments of the SEC, in each case, prior to their being filed with the SEC, and Parent and the Company will provide each other with copies of all such filings made and Parentcorrespondence with the SEC or its staff with respect thereto and (ii) consider in good faith any comments reasonably proposed by Parent or its legal counsel with respect to such documents. If at any time prior to the Effective Time, as applicable, for inclusion any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement shall not, at the time so that the Proxy Statement is first mailed to the stockholders of the Company and at the time of would not include any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that party which discovers such information shall promptly notify the other Parties and parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, and disseminated by the Company to the extent required by applicable Law, disseminated to the stockholders shareholders of the Company. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(db) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with applicable Law the TBOC and the Company’s Organizational Documents its articles of incorporation and bylaws to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) shareholders as soon promptly as reasonably practicable following the mailing of the Proxy Statement for the purpose of obtaining the Company Shareholder Approval (such meeting or any adjournment or postponement thereof, the “Company Meeting”), and (ii) subject to the CompanyBoard’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon approval of a Superior Proposal Recommendation or that the Company may file and commence mailing withdrawal or modification of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company its Recommendation in the Proxy Statement and shall solicitaccordance with Section 5.3(b) or Section 5.3(d), and use its reasonable best efforts to obtain, solicit from the holders of Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting Common Stock proxies in favor of the adoption approval of this Agreement, the Merger and the other transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 7.2, the Company, regardless of whether the Board has approved, endorsed or recommended a Superior Proposal Recommendation or has withdrawn or modified the Recommendation, will submit this Agreement for approval by the holders of Company Common Stock at the Company Meeting. Notwithstanding anything to the contrary contained in this Agreement).
(e) The Company shall cooperate , after consultation with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following Parent, the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) due to the absence of a quorum, (ii) to allow reasonable additional time for the filing and dissemination mailing of any supplemental or amended disclosure document that which the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) counsel is required to be filed and disseminated necessary or appropriate under applicable Law, Law or (iiiii) if as to enable the Company to solicit additional proxies in favor of the time Agreement and the Merger such that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Shareholder Approval is unlikely likely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4received.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Silverleaf Resorts Inc)
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company shall prepare the Proxy Statement, and file with the SEC the preliminary proxy statement relating to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in and Parent shall prepare the form or forms mailed to the Company’s stockholders, the “Proxy Statement”)Schedule 13E-3. Parent and the Company shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law each other in connection with the preparation of the foregoing documents. The Company will use its reasonable best efforts to have the Proxy Statement, and Parent and the Company will use their reasonable best efforts to have the Schedule 13E-3, cleared by the SEC as promptly as practicable after such filing. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s stockholders as promptly as practicable after the Proxy Statement is cleared by the SEC. The Company shall as promptly as practicable notify Parent of the receipt of any oral or written comments from the SEC relating to the Proxy Statement. The information supplied by Company shall cooperate and provide Parent with a reasonable opportunity to review and comment on the Company and Parent, as applicable, for inclusion in draft of the Proxy Statement (including each amendment or supplement thereto), and Parent and the Company shall notcooperate and provide each other with a reasonable opportunity to review and comment on the draft Schedule 13E-3 (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC, prior to filing such with or sending such to the SEC, and Parent and the Company will provide each other with copies of all such filings made and correspondence with the SEC with respect thereto. If at any time prior to the time Effective Time, any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement is first mailed to or the stockholders of Schedule 13E-3 so that the Company and at Proxy Statement or the time of Schedule 13E-3 would not include any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that party which discovers such information shall promptly notify the other Parties and parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to and disseminated by the extent required by applicable Law, disseminated Company to the stockholders of the Company. .
(b) The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(di) Subject to Section 5.3 and Section 5.4(e), the Company shall take all action necessary in accordance with applicable Law the DGCL (including, not less than twenty (20) days prior to the Company Meeting, notifying each stockholder of record entitled to notice of such meeting that appraisal rights are available under Section 262 of the DGCL) and the Company’s Organizational Documents its certificate of incorporation and by-laws to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders as promptly as practicable following the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (such meeting or any adjournment or postponement thereof, the “Company Stockholders’ Meeting”) as soon as reasonably practicable following and (ii) subject to the mailing Board of the Proxy Statement to Directors of the Company’s stockholders (but acting through the Special Committee, if then in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon existence) withdrawal or that the Company may file and commence mailing modification of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company its Recommendation in the Proxy Statement and shall solicitaccordance with Section 5.3(d), and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting solicit from its stockholders proxies in favor of the adoption of the Merger and this Agreement).
(e) The . Notwithstanding anything in this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 7.2, the Company shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination will take all of the Proxy Statement to its stockholders. The Company may adjourn or postpone actions contemplated by this Section 5.4 regardless of whether the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors (whether or not acting through the Special Committee, if then in existence) has determined in good faith (after consultation with its outside legal counsel) is required to be filed approved, endorsed or recommended an Alternative Proposal or has withdrawn, modified or amended the Recommendation, and disseminated under applicable Law, (ii) if as of will submit this Agreement for adoption by the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business stockholders of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any at such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4meeting.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Samples: Merger Agreement (Venoco, Inc.)
Filings; Other Actions. (a) As If the Short Form Merger is not available in accordance with Section 1.12 of this Agreement and the Company Stockholder Approval is required under the DGCL, as promptly as reasonably practicable following the date consummation or expiration of this Agreement, but in any event within twenty (20) Business Days after the date Offer and the Company becoming current with respect to the filing of this Agreementall outstanding periodic reports required to be filed with the SEC or having received a waiver from the SEC with respect thereto, the Company shall prepare and file with the SEC the preliminary proxy statement relating to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent , which shall, subject to Section 4.3, include the Recommendation, and shall cooperate with the Company in the preparation of the Proxy Statement and use its commercially reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested respond to any comments by the Company or required by applicable Law SEC staff in connection with the preparation respect of the Proxy Statement. The information supplied by Parent and Merger Sub shall, and Parent shall cause Merger Sub to, provide to the Company and Parent, such information as applicable, the Company may reasonably request for inclusion in the Proxy Statement. The Company shall use its commercially reasonable efforts to cause the Proxy Statement shall not, at to be mailed to the time Company's stockholders as promptly as practicable after the Proxy Statement is first mailed cleared by the SEC. The Company shall as promptly as practicable notify Parent of the receipt of any oral or written comments from the SEC relating to the stockholders Proxy Statement. The Company shall cooperate and provide Parent with a reasonable opportunity to review and comment on the draft of the Proxy Statement (including each amendment or supplement thereto). The Company shall provide Parent with copies of all filings made and at the time of any meeting of Company stockholders to be held in connection correspondence with the Merger (including SEC with respect to the Company Stockholders’ Meeting)Proxy Statement. If, contain at any untrue statement time prior to the Effective Time, any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party party that discovers such information shall promptly notify the other Parties and parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to and disseminated by the extent required by applicable Law, disseminated Company to the stockholders of the Company. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(db) Subject to Section 5.3 the other provisions of this Agreement and Section 5.4(e)the Company's ability to timely file periodic reports with the SEC, the Company shall (i) take all action necessary in accordance with applicable Law the DGCL and the Company’s Organizational Documents its Certificate of Incorporation and Bylaws to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders stockholders, as promptly as reasonably practicable following the mailing of the Proxy Statement, for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) as soon as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders (but in such meeting or any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon adjournment or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Changepostponement thereof, the "Company shall include the Company Meeting"), and (ii) subject to a Change of Recommendation in the Proxy Statement and shall solicitaccordance with Section 4.3(d), and use its commercially reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting solicit from its stockholders proxies in favor of the adoption approval of this Agreement, the Merger and this Agreement)the other transactions contemplated hereby.
(e) The Company shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Samples: Merger Agreement (Metromedia International Group Inc)
Filings; Other Actions. (a) As promptly as reasonably practicable following after the date of this Agreement, but hereof (and in any event within twenty (20) Business Days after the date of this Agreementhereof), the Company shall prepare and file with the SEC the preliminary proxy statement relating Proxy Statement, which shall, subject to Section 5.5, include the Company Stockholders’ Meeting (together with Recommendation, and shall use reasonable best efforts to respond to any amendments or supplements thereto, comments by the SEC staff in each case, in respect of the form or forms Proxy Statement as promptly as reasonably practicable after the receipt thereof and shall cause the definitive Proxy Statement to be mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law in connection with the preparation of the Proxy Statement. The information supplied by the Company and Parent, as applicable, for inclusion in the Proxy Statement shall not, at stockholders promptly following the time the Proxy Statement is first mailed cleared by the SEC for mailing to the Company’s stockholders (and in any event within five (5) Business Days of such time). Parent and Merger Sub shall provide to the Company such information concerning themselves and at the time of any meeting of Company stockholders to be held their Affiliates as is customarily included in a proxy statement prepared in connection with a transaction of the Merger (including type contemplated by this Agreement or as otherwise required by Law, requested by the SEC or its staff or as the Company Stockholders’ Meeting)may reasonably request. Subject to applicable Law, contain prior to filing or mailing the Proxy Statement (or any untrue statement amendment or supplement thereto) or responding to any written comments of the SEC staff with respect thereto, the Company shall provide Parent and its counsel a material fact reasonable opportunity to review and to propose comments on such document or omit response and consider in good faith such comments reasonably proposed by Parent or its counsel for inclusion therein. Each of the Company, Parent and Merger Sub agrees to state promptly (i) correct any information provided by it specifically for use in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material fact required respect and (ii) supplement the information provided by it specifically for use in the Proxy Statement to be stated therein or include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, . The Company agrees to cause the Party that discovers such information shall Proxy Statement as so corrected or supplemented promptly notify the other Parties and an appropriate amendment or supplement describing such information shall to be promptly filed by the Company with the SEC andand to be disseminated to its stockholders, in each case as and to the extent required by applicable Law, disseminated to the stockholders of the Company. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(db) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with applicable Law action, including such actions required by NASDAQ and SEC rules and as required by the Company’s Organizational Documents MBCA and its articles of incorporation and bylaws to set a record date for, duly call, give notice of, convene and hold a meeting of its stockholders promptly following the mailing of the Proxy Statement for the purpose of obtaining (A) the Company Stockholder Approval and (B) if so desired and mutually agreed, a vote upon other matters of the type customarily brought before a meeting of stockholders in connection with the approval of a merger agreement or the transactions contemplated thereby (the “Company Stockholders’ Meeting”), and (ii) as soon as subject to a Change of Recommendation in accordance with Section 5.5, use reasonable best efforts to solicit from its stockholders proxies in favor of the approval of this Agreement and otherwise use reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, necessary, proper or advisable on its part to cause the Company Stockholder Approval to be received at the Company Meeting, and shall comply with all legal requirements applicable to the Company Meeting. The Company shall keep Parent informed on a reasonably practicable current basis of the status of its efforts to solicit such approval following the mailing dissemination of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company Recommendation in the Proxy Statement and shall solicit, and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting proxies in favor of the adoption of the Merger and this Agreement).
(e) The Company shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone shall not, without the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), adjourn, postpone or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, otherwise delay the Company shall continue in all respects to comply with its obligations under this Section 5.4.
(f) Once Meeting; provided, that the Company has established a record date for the Company Stockholders’ Meetingmay, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheldand shall, conditioned or delayed).
(g) Without on the prior written consent reasonable request of Parent), the adoption of this Agreement shall be the only matter (other than related procedural matters) that adjourn or postpone the Company may propose to be acted on by the Company’s stockholders at Meeting (A) if the Company Stockholders’ Meeting.believes in good faith that such adjournment or postponement is reasonably necessary to allow reasonable additional time to (1) solicit additional proxies necessary to obtain the Company Stockholder Approval, whether or not a quorum is present, or
Appears in 1 contract
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, Purchaser and the Company shall prepare will cooperate and file consult with the SEC the preliminary proxy statement relating to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of the Proxy Statement other and use its reasonable best efforts to furnish prepare and file all information concerning Parentnecessary documentation, Merger Sub to effect all necessary applications, notices, petitions, filings and their Representatives that is reasonably requested by the Company or required by applicable Law in connection with the preparation of the Proxy Statement. The information supplied by the Company and Parent, as applicable, for inclusion in the Proxy Statement shall not, at the time the Proxy Statement is first mailed to the stockholders of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference thereinother documents, and no representation to obtain all necessary permits, consents, orders, approvals and authorizations of, or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parentany exemption by, its outside legal counsel all third parties and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other RepresentativesEntities, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt expiration or termination of any comments (whether written applicable waiting period, necessary or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements advisable to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or consummate the transactions contemplated by this Agreement, including and to perform the Mergercovenants contemplated by this Agreement. Each party shall execute and deliver both before and after the Series B Closing such further certificates, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement agreements and other documents and communications relating take such other actions as the other parties may reasonably request to a Company Adverse Recommendation Change made in accordance with Section 5.3consummate or implement such transactions or to evidence such events or matters. The Company shallIn particular, subject Purchaser will use its reasonable best efforts to the requirements of Section 5.4(b)promptly obtain or submit, respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to and the Company Stockholders’ Meeting (will cooperate as may reasonably be requested by Purchaser to help Purchaser promptly obtain or any adjournment or postponement thereof) any information relating submit, as the case may be, as promptly as practicable, all notices to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to the extent required by applicable Lawlaw or regulation, disseminated consents, approvals or exemptions from bank regulatory authorities, for the transactions contemplated by this Agreement.
(b) Unless this Agreement has been terminated pursuant to Section 5.1, the Company shall call a meeting of stockholders (which may be the Company’s 2009 annual meeting of stockholders) and propose that the stockholders of the CompanyCompany vote on the proposal (the “Stockholder Proposal”) to approve the conversion of the Series B Preferred Stock into, and exercise of the Warrants for, Common Stock, for purposes of Rule 4350(i) of the NASDAQ Marketplace Rules. The Board of Directors shall recommend to the Company’s stockholders that such stockholders vote in favor of the Stockholder Proposal. In connection with such meeting, the Company shall prepare (and Purchaser will reasonably cooperate with the Company to prepare) and file with the SEC a preliminary proxy statement, shall use its reasonable best efforts to respond to any comments of the SEC or its staff and to cause the Proxy Statement a definitive proxy statement related to such stockholders’ meeting to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(d) Subject to Section 5.3 and Section 5.4(e), the Company shall take all action necessary in accordance with applicable Law and the Company’s Organizational Documents to set a record date for, duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) as soon as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company Recommendation in the Proxy Statement and shall solicit, and use its reasonable best efforts to obtainsolicit proxies for such stockholder approval. In the event that the approval of the Stockholder Proposal is not obtained at the Company’s annual stockholders’ meeting, the Company Stockholder Approval shall include a proposal to approve (and the Board of Directors shall recommend approval of) each such proposal at a meeting of its stockholders no less than once in each subsequent six-month period beginning on the Company Stockholdersdate of such annual stockholders’ Meeting (including by soliciting proxies in favor of the adoption of the Merger and this Agreement)meeting until all such approvals are obtained or made.
(ec) The Purchaser agrees to furnish the Company, and the Company shall cooperate upon request, furnish to Purchaser, all information concerning itself, its Affiliates, directors, officers, partners and stockholders and such other matters as may be reasonably necessary or advisable in connection with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days proxy statement in connection with any one postponement such stockholders meeting and any other statement, filing, notice or adjournment application made by or more than an aggregate on behalf of thirty days from the Original Date (unless the Company shall have received prior written consent such other party or any of Parent), or (iv) its Subsidiaries to any Governmental Entity in connection with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, Series B Closing and the Company shall continue in all respects to comply with its obligations under other transactions contemplated by this Section 5.4Agreement.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Filings; Other Actions. (a) COVENANTS OF THE COMPANY WITH RESPECT TO PROXY STATEMENT. As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company shall shall, with the assistance of Parent prepare and file with the SEC the preliminary proxy statement relating Proxy Statement (as defined herein), which shall, except to the extent provided in Section 5.3, include the text of this Agreement, the fairness opinion of J.P. Morgan Securities Inc. referred to in Section 3.14 hereof and xxx xxxxxxendation of the Company's Board of Directors that the Company's shareholders approve and adopt this Agreement, and shall use its reasonable best efforts, after consultation with Parent, to respond to any comments by the SEC staff in respect of the Proxy Statement. The Company shall provide Parent with a reasonable opportunity to review and comment on the Proxy Statement or any amendments or supplements thereto. The Company agrees that (i) none of the information with respect to the Company Stockholders’ Meeting (together with or its Subsidiaries to be included in the Proxy Statement will, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law in connection with the preparation of the Proxy Statement. The information supplied by the Company and Parent, as applicable, for inclusion in the Proxy Statement shall not, at the time the Proxy Statement is first mailed to the stockholders of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are were made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders misleading and (ii) consider the Proxy Statement will comply as to form in good faith including all material respects with the provisions of the Exchange Act and the rules and regulations promulgated thereunder. The letters to shareholders, notices of meeting, proxy statement and forms of proxies to be distributed to shareholders in connection with the Merger and any schedules required to be filed with the SEC in connection therewith are collectively referred to herein as the "PROXY STATEMENT." Any information required under the BC Act and the Company's Memorandum and Articles of Association in connection with duly calling, giving notice of, convening and holding the Company Meeting shall be contained in the Proxy Statement and such other documents and communications related to Statement, which information shall be prepared by the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, BC Act and the SEC or the staff Company's Memorandum and Articles of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy StatementAssociation. If at any time prior to the Company Stockholders’ Meeting (any event or any adjournment or postponement thereof) any information circumstance relating to Parent or the Company, Company or any of its Subsidiaries, or their respective Affiliates, officers or directors, is should be discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Company shall promptly inform Parent and shall file such amendment or supplement with the SEC and, if required by applicable Law, the Company shall mail such amendment or supplement to the Company's shareholders. Any expenses incurred in connection with the printing, filing and mailing of the Proxy Statement would not include a misstatement (including applicable SEC filing fees) shall be paid by the Company.
(b) COVENANTS OF PARENT WITH RESPECT TO PROXY STATEMENT. Parent agrees that none of the information with respect to Parent or its Subsidiaries provided by or on behalf of Parent to be included in the Proxy Statement will, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Company Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If at any time prior to the Company Meeting any event or circumstance relating to Parent or any of its Subsidiaries, the Party or their respective officers or directors, should be discovered by Parent that discovers such information shall promptly notify the other Parties and should be set forth in an appropriate amendment or supplement describing such information to the Proxy Statement, Parent shall be promptly filed by inform the Company (which shall file such amendment or supplement with the SEC SEC) and, to the extent if required by applicable Law, disseminated to the stockholders of the Company. The Company shall cause the Proxy Statement to be mailed mail such amendment or supplement to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement's shareholders.
(d) Subject to Section 5.3 and Section 5.4(e), the Company shall take all action necessary in accordance with applicable Law and the Company’s Organizational Documents to set a record date for, duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) as soon as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company Recommendation in the Proxy Statement and shall solicit, and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting proxies in favor of the adoption of the Merger and this Agreement).
(e) The Company shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company shall prepare and file with the SEC the preliminary proxy statement relating to Proxy Statement, and the Company Stockholders’ Meeting (together and Parent shall prepare and file with any amendments or supplements thereto, in each case, in the form or forms mailed to SEC the Company’s stockholders, the “Proxy Statement”)Schedule 13E-3. Parent and the Company shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law each other in connection with the preparation of the foregoing documents. The Company will use its reasonable best efforts to have the Proxy Statement, and Parent and the Company will use their reasonable best efforts to have the Schedule 13E-3, cleared by the staff of the SEC as promptly as practicable after such filing. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Proxy Statement is cleared by the staff of the SEC. The Company shall as promptly as practicable notify Parent of the receipt of any oral or written comments from the staff of the SEC relating to the Proxy Statement. The information supplied by Company shall cooperate and provide Parent with a reasonable opportunity to review and comment on the Company and Parent, as applicable, for inclusion in draft of the Proxy Statement (including each amendment or supplement thereto), and Parent and the Company shall notcooperate and provide each other with a reasonable opportunity to review and comment on the draft Schedule 13E-3 (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the staff of the SEC, prior to filing such with or sending such to the SEC, and Parent and the Company will provide each other with copies of all such filings made and correspondence with the SEC or its staff with respect thereto. If at any time prior to the time Effective Time, any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement is first mailed to or the stockholders of Schedule 13E-3 so that the Company and at Proxy Statement or the time of Schedule 13E-3 would not include any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that party which discovers such information shall promptly notify the other Parties and parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to and disseminated by the extent required by applicable Law, disseminated Company to the stockholders of the Company. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(db) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with applicable Law the CBCA (including, not less than 20 days prior to the Company Meeting, notifying each stockholder of record entitled to vote at such meeting that appraisal rights are available under Section 33-855 ET SEQ. of the CBCA) and the Company’s Organizational Documents its certificate of incorporation and by-laws to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable following the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (such meeting or any adjournment or postponement thereof, the “Company Stockholders’ Meeting”"COMPANY MEETING"), and (ii) as soon as reasonably practicable following subject to the mailing Board of Directors of the Proxy Statement to Company's or the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon Special Committee's withdrawal or that the Company may file and commence mailing modification of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company its Recommendation in the Proxy Statement and shall solicitaccordance with Section 5.3(d), and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting solicit or cause to be solicited from its stockholders proxies in favor of the adoption approval of this Agreement, the Merger and this Agreement).
(e) the other transactions contemplated hereby. The Company shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone will include the Company Stockholders’ Meeting (i) to allow time for Recommendation unless the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors (acting through the Special Committee, if then in existence) has determined withdrawn, modified or amended the Recommendation to the extent permitted under Section 5.3(d). Notwithstanding anything in good faith this Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and subject to compliance with Section 7.2, the Company, regardless of whether the Board of Directors (after consultation whether or not acting through the Special Committee, if then in existence) has approved, endorsed or recommended an Alternative Proposal or has withdrawn, modified or amended the Recommendation, but in compliance with its outside legal counselSection 33-817(2) is required to be filed and disseminated under applicable Law, (ii) if as of the time that CBCA, will submit this Agreement for adoption by the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business stockholders of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Samples: Merger Agreement (Macdermid Inc)
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, Purchaser and the Company shall prepare will cooperate and file consult with the SEC the preliminary proxy statement relating to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of the Proxy Statement other and use its reasonable best efforts to furnish prepare and file all information concerning Parentnecessary documentation, Merger Sub to effect all necessary applications, notices, petitions, filings and their Representatives that is reasonably requested by the Company or required by applicable Law in connection with the preparation of the Proxy Statement. The information supplied by the Company and Parent, as applicable, for inclusion in the Proxy Statement shall not, at the time the Proxy Statement is first mailed to the stockholders of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference thereinother documents, and no representation to obtain all necessary permits, consents, orders, approvals and authorizations of, or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parentany exemption by, its outside legal counsel all third parties and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other RepresentativesEntities, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt expiration or termination of any comments (whether written applicable waiting period, necessary or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements advisable to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or consummate the transactions contemplated by this Agreement, including and to perform the Mergercovenants contemplated by this Agreement. Each party shall execute and deliver both before and after the Series A Closing such further certificates, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement agreements and other documents and communications relating take such other actions as the other parties may reasonably request to a Company Adverse Recommendation Change made in accordance with Section 5.3consummate or implement such transactions or to evidence such events or matters. The Company shallIn particular, subject Purchaser will use its reasonable best efforts to the requirements of Section 5.4(b)promptly obtain or submit, respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to and the Company Stockholders’ Meeting (will cooperate as may reasonably be requested by Purchaser to help Purchaser promptly obtain or any adjournment or postponement thereof) any information relating submit, as the case may be, as promptly as practicable, all notices to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to the extent required by applicable Lawlaw or regulation, disseminated consents, approvals or exemptions from bank regulatory authorities, for the transactions contemplated by this Agreement.
(b) Unless this Agreement has been terminated pursuant to Section 5.1, at the Company’s 2009 annual meeting of stockholders which is presently scheduled to occur in June of 2009, the Company shall propose that the stockholders of the CompanyCompany vote on the proposal (the “Stockholder Proposal”) to approve the conversion of the Series A Preferred Stock into, and exercise of the Warrants for, Common Stock, for purposes of Rule 4350(i) of the NASDAQ Marketplace Rules. The Board of Directors shall recommend to the Company’s stockholders that such stockholders vote in favor of the Stockholder Proposal. In connection with such meeting, the Company shall prepare (and Purchaser will reasonably cooperate with the Company to prepare) and file with the SEC a preliminary proxy statement, shall use its reasonable best efforts to respond to any comments of the SEC or its staff and to cause the Proxy Statement a definitive proxy statement related to such stockholders’ meeting to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(d) Subject to Section 5.3 and Section 5.4(e), the Company shall take all action necessary in accordance with applicable Law and the Company’s Organizational Documents to set a record date for, duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) as soon as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company Recommendation in the Proxy Statement and shall solicit, and use its reasonable best efforts to obtainsolicit proxies for such stockholder approval. In the event that the approval of the Stockholder Proposal is not obtained at such annual stockholders’ meeting, the Company Stockholder Approval shall include a proposal to approve (and the Board of Directors shall recommend approval of) each such proposal at a meeting of its stockholders no less than once in each subsequent six-month period beginning on the Company Stockholdersdate of such annual stockholders’ Meeting (including by soliciting proxies in favor of the adoption of the Merger and this Agreement)meeting until all such approvals are obtained or made.
(ec) The Purchaser agrees to furnish the Company, and the Company shall cooperate upon request, furnish to Purchaser, all information concerning itself, its Affiliates, directors, officers, partners and stockholders and such other matters as may be reasonably necessary or advisable in connection with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days proxy statement in connection with any one postponement such stockholders meeting and any other statement, filing, notice or adjournment application made by or more than an aggregate on behalf of thirty days from the Original Date (unless the Company shall have received prior written consent such other party or any of Parent), or (iv) its Subsidiaries to any Governmental Entity in connection with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, Series A Closing and the Company shall continue in all respects to comply with its obligations under other transactions contemplated by this Section 5.4Agreement.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20) Business Days after the date of this Agreement, the Company shall prepare the Proxy Statement, and file with the SEC the preliminary proxy statement relating to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in and Parent shall prepare the form or forms mailed to the Company’s stockholders, the “Proxy Statement”)Schedule 13E-3. Parent and the Company shall cooperate with the Company in the preparation of the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested by the Company or required by applicable Law each other in connection with the preparation of the foregoing documents. The Company will use its reasonable best efforts to have the Proxy Statement, and Parent and the Company will use their reasonable best efforts to have the Schedule 13E-3, cleared by the SEC as promptly as practicable after such filing. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s shareholders as promptly as practicable after the Proxy Statement is cleared by the SEC. The Company shall as promptly as practicable notify Parent of the receipt of any oral or written comments from the SEC relating to the Proxy Statement. The information supplied by Company shall cooperate and provide Parent with a reasonable opportunity to review and comment on the Company and Parent, as applicable, for inclusion in draft of the Proxy Statement (including each amendment or supplement thereto), and Parent and the Company shall notcooperate and provide each other with a reasonable opportunity to review and comment on the draft Schedule 13E-3 (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC, prior to filing such with or sending such to the SEC, and Parent and the Company will provide each other with copies of all such filings made and correspondence with the SEC with respect thereto. If at any time prior to the time Effective Time, any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement is first mailed to or the stockholders of Schedule 13E-3 so that the Company and at Proxy Statement or the time of Schedule 13E-3 would not include any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that party which discovers such information shall promptly notify the other Parties and parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, and disseminated by the Company to the extent required by applicable Law, disseminated to the stockholders shareholders of the Company. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders, in definitive form, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(db) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with applicable Law the TBCA and the Company’s Organizational Documents its articles of incorporation and bylaws to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) shareholders as soon promptly as reasonably practicable following the mailing of the Proxy Statement for the purpose of obtaining the Company Shareholder Approval (such meeting or any adjournment or postponement thereof, the “Company Meeting”), and (ii) subject to the Board of Directors of the Company’s stockholders (but in any event within thirty-five days after or the date the SEC staff advises that it has no further comments thereon Special Committee’s withdrawal or that the Company may file and commence mailing modification of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company its Recommendation in the Proxy Statement and shall solicitaccordance with Section 5.3(d), and use its all reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting solicit from its shareholders proxies in favor of the adoption approval of this Agreement, the Merger and the other transactions contemplated hereby. Notwithstanding anything in this Agreement).
(e) The Company shall cooperate Agreement to the contrary, unless this Agreement is terminated in accordance with Section 7.1 and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following subject to compliance with Section 7.2, the dissemination Company, regardless of whether the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors (whether or not acting through the Special Committee, if then in existence) has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Lawapproved, (ii) if as of endorsed or recommended an Alternative Proposal or has withdrawn, modified or amended the time that Recommendation, will submit this Agreement for approval by the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business shareholders of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any at such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4meeting.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Samples: Merger Agreement (Egl Inc)
Filings; Other Actions. (a) As If the Short Form Merger is not available in accordance with Section 1.12 of this Agreement and the Company Stockholder Approval is required under the DGCL, as promptly as reasonably practicable following the date consummation or expiration of this Agreement, but in any event within twenty (20) Business Days after the date Offer and the Company becoming current with respect to the filing of this Agreementall outstanding periodic reports required to be filed with the SEC or having received a waiver from the SEC with respect thereto, the Company shall prepare and file with the SEC the preliminary proxy statement relating Proxy Statement, which shall, subject to Section 4.3, include the Recommendation, and shall use its commercially reasonable efforts to respond to any comments by the SEC staff in respect of the Proxy Statement. Parent and Merger Sub shall, and Parent shall cause Merger Sub to, provide to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, such information as the Company may reasonably request for inclusion in the form or forms Proxy Statement. The Company shall use its commercially reasonable efforts to cause the Proxy Statement to be mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of stockholders as promptly as practicable after the Proxy Statement and use its reasonable best efforts to furnish all information concerning Parent, Merger Sub and their Representatives that is reasonably requested cleared by the SEC. The Company shall as promptly as practicable notify Parent of the receipt of any oral or required by applicable Law in connection with written comments from the preparation of SEC relating to the Proxy Statement. The information supplied by Company shall cooperate and provide Parent with a reasonable opportunity to review and comment on the Company and Parent, as applicable, for inclusion in draft of the Proxy Statement (including each amendment or supplement thereto). The Company shall notprovide Parent with copies of all filings made and correspondence with the SEC with respect to the Proxy Statement. If, at any time prior to the time Effective Time, any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement is first mailed to so that the stockholders of the Company and at the time of Proxy Statement would not include any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), contain any untrue statement misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party party that discovers such information shall promptly notify the other Parties and parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to and disseminated by the extent required by applicable Law, disseminated Company to the stockholders of the Company. The Company shall cause .
(b) Subject to the Proxy Statement to be mailed to other provisions of this Agreement and the Company’s stockholders, in definitive form, as promptly as reasonably practicable after ability to timely file periodic reports with the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statement.
(d) Subject to Section 5.3 and Section 5.4(e)SEC, the Company shall (i) take all action necessary in accordance with applicable Law the DGCL and the Company’s Organizational Documents its Certificate of Incorporation and Bylaws to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders stockholders, as promptly as reasonably practicable following the mailing of the Proxy Statement, for the purpose of obtaining the Company Stockholder Approval (such meeting or any adjournment or postponement thereof, the “Company Stockholders’ Meeting”), and (ii) as soon as reasonably practicable following the mailing subject to a Change of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company Recommendation in the Proxy Statement and shall solicitaccordance with Section 4.3(d), and use its commercially reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting solicit from its stockholders proxies in favor of the adoption approval of this Agreement, the Merger and this Agreement)the other transactions contemplated hereby.
(e) The Company shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting, (iii) if the Company reasonably determines in good faith that the Company Stockholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.4.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement, but in any event within twenty (20i) Business Days after the date of this Agreement, the Company shall prepare the Proxy Statement, which shall, subject to Section 6.4, include the Recommendation and file with (ii) Parent shall furnish all information concerning itself and its Affiliates that is required to be included in the Proxy Statement.
(b) The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any written request from the preliminary proxy statement SEC or its staff for amendments or supplements to the Proxy Statement, and the Company, on the one hand, and Parent, on the other hand, shall, and Parent shall cause its Affiliates to, provide the other(s) with copies of all correspondence between it and its Representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the Company Stockholders’ Meeting (together with any amendments or supplements thereto, in each case, in the form or forms mailed to the Company’s stockholders, the “Proxy Statement”). Parent shall cooperate with the Company in the preparation of the Proxy Statement and or the transactions contemplated hereby. The Company shall use its reasonable best efforts to furnish (i) cause the Proxy Statement to comply as to form in all information concerning material respects with the requirements of the Exchange Act applicable thereto and (ii) respond (with the assistance of, and after consultation with, Parent, Merger Sub and as provided by this Section 6.5(b)) as promptly as practicable to any comments of the SEC with respect to the Proxy Statement. If, at any time prior to the Company Meeting, any information relating to the Company, Parent or any of their Representatives that respective Affiliates, officers or directors is reasonably requested discovered by the Company or required by applicable Law Parent which should be set forth in connection with the preparation of the Proxy Statement. The information supplied by the Company and Parent, as applicable, for inclusion in an amendment or supplement to the Proxy Statement shall not, at the time so that the Proxy Statement is first mailed to or the stockholders of the Company and at the time of any meeting of Company stockholders to be held in connection with the Merger (including the Company Stockholders’ Meeting), other filings shall not contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with respect to statements made therein based on information supplied by Parent or Merger Sub for inclusion or incorporation by reference therein, and no representation or warranty is made by Parent with respect to statements made therein based on information supplied by the Company for inclusion or incorporation therein.
(b) The Company shall (i) provide Parent, its outside legal counsel and its other Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with the applicable Governmental Entity and dissemination of such documents to the Company’s stockholders and (ii) consider in good faith including in the Proxy Statement and such other documents and communications related to the Company Stockholders Meeting all comments reasonably proposed by Parent, its outside legal counsel and its other Representatives, and the Company agrees that all information relating to Parent, its Affiliates and their respective Representatives included in the Proxy Statement shall be in form and content satisfactory to Parent, acting reasonably; provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3.
(c) The Company shall notify Parent promptly of the receipt of any comments (whether written or oral) from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with true and complete copies or, if oral, summary descriptions, of all correspondence between the Company and any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the transactions contemplated by this Agreement, including the Merger, and provide Parent, its outside legal counsel and its other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement); provided that the Company shall not have such obligations with respect to any Proxy Statement and other documents and communications relating to a Company Adverse Recommendation Change made in accordance with Section 5.3. The Company shall, subject to the requirements of Section 5.4(b), respond promptly to any comments from the SEC or the staff of the SEC to the Proxy Statement. If at any time prior to the Company Stockholders’ Meeting (or any adjournment or postponement thereof) any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, is discovered by Parent or the Company that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party party that discovers such information shall promptly notify the other Parties parties thereof, and an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and, to the extent required by applicable Law, disseminated to the stockholders shareholders of the Company. The Company shall cause Prior to the filing or mailing of the Proxy Statement (or any amendment or supplement thereto) or responding to be mailed any SEC comments on the Proxy Statement, each of the Company, on the one hand, and Parent and its Affiliates, on the other hand, shall (i) provide each other with a reasonable opportunity to review and comment on the Proxy Statement and all amendments or supplements to the foregoing documents and (ii) consider in good faith such comments reasonably proposed by the Company’s stockholders, in definitive formon the one hand, or Parent and its Affiliates, on the other hand, as promptly as reasonably practicable after the resolution of any comments of the SEC or the staff of the SEC with respect to the preliminary Proxy Statementapplicable.
(dc) Subject to Section 5.3 and Section 5.4(e)the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with applicable Law (including the TBCA) and the Company’s Organizational Documents its charter and bylaws to set a record date forduly call, duly give notice of, convene and hold a meeting of its stockholders shareholders as promptly as practicable after the Proxy Statement is cleared by the SEC, for the purpose of obtaining the Company Stockholder Shareholder Approval (the “Company Stockholders’ Meeting”), and (ii) as soon as reasonably practicable following the mailing unless there has been a Change of the Proxy Statement to the Company’s stockholders (but in any event within thirty-five days after the date the SEC staff advises that it has no further comments thereon or that the Company may file and commence mailing of the definitive Proxy Statement (and if such day is not a Business Day, on the first Business Day subsequent to such day)). Subject to Section 5.3 or this Section 5.4, unless the Company shall have made a Company Adverse Recommendation Change, the Company shall include the Company Recommendation in the Proxy Statement and shall solicitaccordance with Section 6.4, and use its reasonable best efforts to obtain, the Company Stockholder Approval at the Company Stockholders’ Meeting (including by soliciting solicit from its shareholders proxies in favor of the adoption approval of this Agreement and the Merger and this Agreement).
(e) The Company transactions contemplated hereby. For the avoidance of doubt, no Change of Recommendation shall cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following obviate or otherwise affect the dissemination of the Proxy Statement to its stockholders. The Company may adjourn or postpone the Company Stockholders’ Meeting (i) to allow time for the filing and dissemination of any supplemental or amended disclosure document that the Company Board of Directors has determined in good faith (after consultation with its outside legal counsel) is required to be filed and disseminated under applicable Law, (ii) if as of the time that the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) (the “Original Date”) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business obligation of the Company Stockholders’ Meetingto duly call, (iii) if give notice of, convene and hold the Company reasonably determines in good faith that Meeting for the purpose of obtaining the Company Stockholder Shareholder Approval is unlikely to be obtained if the Company Stockholders’ Meeting is held on the Original Date, as long as, in the cases of the foregoing clauses (ii) and (iii), the date of the Company Stockholders’ Meeting is not postponed or adjourned more than ten days in connection accordance with any one postponement or adjournment or more than an aggregate of thirty days from the Original Date (unless the Company shall have received prior written consent of Parent), or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). During any such period of adjournment or postponement, the Company shall continue in all respects to comply with its obligations under this Section 5.46.5.
(f) Once the Company has established a record date for the Company Stockholders’ Meeting, the Company may not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(g) Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter (other than related procedural matters) that the Company may propose to be acted on by the Company’s stockholders at the Company Stockholders’ Meeting.
Appears in 1 contract
Samples: Merger Agreement (Saks Inc)
