Parent Special Meeting. (a) As soon as reasonably practicable (and in any event within three (3) days) following the execution and delivery of this Agreement, Parent shall prepare and file with the SEC a proxy statement (the "Proxy Statement"), to be used for the purpose of soliciting proxies from the shareholders of Parent ("Parent Shareholders") to vote in favor of (i) the adoption of an amendment to the articles of incorporation of Parent, to be filed immediately prior to the Effective Time, to approve an increase in the authorized shares of Parent to 75,000,000 shares, consisting of 74,000,000 common shares and 1,000,000 preferred shares (the "Parent Charter Amendment", and all such proposals necessary to adopt the Parent Charter Amendment, the "Charter Proposals"), (ii) the issuance of the Parent Common Shares to be issued as part of the Merger Consideration and any shares that may become issuable as part of the Financing (or any Alternate Financing) pursuant to applicable NASDAQ listing rules (the "NASDAQ Proposal"), (iii) the adoption of an amendment to the Equity Plan, the form of which amendment shall be agreed to by the parties to this Agreement and approved by the Parent Board prior to filing the Proxy Statement, to increase the number of shares available for awards thereunder by up to 1,500,000 shares, (iv) to adjourn the shareholder meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the transactions contemplated by this Agreement for any reason, and (v) the approval of any other proposals reasonably agreed among Parent and the Company (collectively, the "Parent Shareholder Matters") at a meeting of Parent Shareholders to be called and held for such purpose (the "Special Meeting"). The Charter Proposals and the NASDAQ Proposal are referred to herein as the "Necessary Shareholder Matters". (b) Parent shall take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or "blue sky" Laws, and the rules and regulations thereunder in connection with the issuance of any Parent Stock. (c) Parent shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable efforts to cause the Proxy Statement to be cleared by the SEC as promptly as practicable. Parent shall also take any and all actions required to satisfy the requirements of the Exchange Act with respect to the Proxy Statement. Parent will notify the Company promptly after it receives notice of: (i) the time when the preliminary Proxy Statement has been filed; (ii) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; (iii) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC; (iv) the filing of any supplement or amendment to the Proxy Statement; (v) any request by the SEC for amendment of the Proxy Statement; (vi) any comments from the SEC relating to the Proxy Statement and responses thereto; and (vii) requests by the SEC for additional information, and in each case Parent shall provide the Company with copies of all written correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand. (d) As soon as practicable following the SEC completing its review of the Proxy Statement (or the expiration of the waiting period in Rule 14a-6(a) in the event the SEC does not review the Proxy Statement) (either such date, the "SEC Clearance Date"), but not later than five (5) Business Days thereafter, Parent shall (i) distribute the Proxy Statement to the Parent Shareholders, (ii) having, prior to the SEC Clearance Date, established the record date therefor, duly call, give notice of, convene and hold the Special Meeting in accordance with the IBCL and subject to the other provisions of this Agreement, (iii) hold the Special Meeting on a day not more than thirty (30) days after the date on which Parent mails the Proxy Statement to the Parent Shareholders and (iv) subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the Parent Shareholder Matters. Notwithstanding the foregoing provisions of this Section 6.4(d), Parent shall have the right to make one or more successive postponements or adjournments of the Special Meeting, (i) after consultation with the Company and the Securityholder Representative, if, as of the time for which the Special Meeting is originally scheduled, there are insufficient Parent Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Special Meeting, (ii) after consultation with the Company, in order to solicit additional proxies from Parent Shareholders for purposes of obtaining approval of the Necessary Shareholder Matters, or (iii) with the consent of the Company, which shall not be unreasonably withheld, conditioned, or delayed, provided that in the event of a postponement or adjournment, the Special Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved. (e) Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the IBCL, as applicable, in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Parent and the Company shall each ensure that the Proxy Statement does not, as of the date on which it is first distributed to Parent Shareholders and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made in light of the circumstances under which they were made, not misleading (provided that no party to this Agreement shall be responsible for the accuracy or completeness of any information relating to another party or any other information furnished by another party for inclusion in the Proxy Statement). If at any time prior to the Effective Time any information relating to the parties to this Agreement, or any of their respective Affiliates, officers or directors, should be discovered by any party that should be set forth in an amendment or supplement to the Proxy Statement, so that any of such documents would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (i) the party that discovers such information shall promptly notify the other parties, (ii) Parent shall promptly correct any information in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect and (iii) Parent shall take all steps necessary to amend or supplement the Proxy Statement, as applicable, and to cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and disseminated to Parent Shareholders to the extent required by applicable Legal Requirement; provided that the delivery of such notice and the filing of any such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any party hereunder or otherwise affect the remedies available hereunder to any party. (f) Parent, acting through the Parent Board, shall include in the Proxy Statement the recommendation of the Parent Board that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters, and shall use commercially reasonable efforts to (i) solicit from the holders of Parent Common Shares proxies in favor of the adoption of this Agreement and (ii) otherwise take all actions necessary or advisable to obtain the approval of the Parent Shareholder Matters. Neither the Parent Board nor any committee or agent or representative thereof shall withdraw, withhold, amend, modify or materially qualify or propose to withdraw, withhold, amend, modify or materially qualify, the Parent Board's recommendation that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters. (g) Without the prior written consent of the Company or as required by applicable Legal Requirement, (i) the Parent Shareholder Matters shall be the only matters that Parent shall propose to be acted on by the holders of Parent Common Shares at the Special Meeting and Parent shall not submit any other proposal to such holders in connection with the Special Meeting or otherwise (including any proposal inconsistent with the approval of the Parent Shareholder Matters) and (ii) Parent shall not call any meeting of holders of Parent Common Shares prior to the Special Meeting. (h) Immediately following the execution and delivery of this Agreement, Parent, as sole stockholder of Merger Sub, shall adopt this Agreement and approve the First Merger, in accordance with the Delaware Law. (i) Immediately following the execution and delivery of this Agreement, Parent, as sole member of Merger Sub LLC, shall adopt this Agreement and approve the Second Merger, in accordance with the Delaware Limited Liability Company Act, as amended.
Appears in 1 contract
Samples: Merger Agreement (Inotiv, Inc.)
Parent Special Meeting. (a) As soon Parent shall, as promptly as reasonably practicable (and in any event within three (3) days) following the execution and delivery of this Agreementpracticable, Parent shall prepare and file with the SEC a proxy statement (the "Proxy Statement"), to be used for the purpose of soliciting proxies from the shareholders of Parent ("Parent Shareholders") to vote in favor of (i) establish the adoption of an amendment to the articles of incorporation of Parentrecord date, to be filed immediately prior to the Effective Timeor duly call, to approve an increase in the authorized shares of Parent to 75,000,000 shares, consisting of 74,000,000 common shares and 1,000,000 preferred shares (the "Parent Charter Amendment"give notice of, and all such proposals necessary to adopt convene and hold the Parent Charter Amendment, Special Meeting in accordance with the "Charter Proposals")DGCL, (ii) after the issuance Registration Statement has been declared effective under the Securities Act, cause the Proxy Statement to be disseminated to Parent’s stockholders in compliance with applicable Law and (iii) after the Registration Statement has been declared effective under the Securities Act, solicit proxies from the holders of Parent Common Stock to vote in accordance with the recommendation of the Parent Common Shares Board with respect to be issued as part each of the Merger Consideration and any shares that may become issuable as part of the Financing (or any Alternate Financing) pursuant to applicable NASDAQ listing rules (the "NASDAQ Proposal"), (iii) the adoption of an amendment to the Equity Plan, the form of which amendment shall be agreed to by the parties to this Agreement and approved by the Parent Board prior to filing the Proxy Statement, to increase the number of shares available for awards thereunder by up to 1,500,000 shares, (iv) to adjourn the shareholder meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the transactions contemplated by this Agreement for any reason, and (v) the approval of any other proposals reasonably agreed among Parent and the Company (collectively, the "Parent Shareholder Matters") at a meeting of Parent Shareholders to be called and held for such purpose (the "Special Meeting"). The Charter Proposals and the NASDAQ Proposal are referred to herein as the "Necessary Shareholder Matters"Proposals.
(b) Parent shall, through the Parent Board, recommend to its stockholders that they approve the Proposals (the “Parent Board Recommendation”) and shall include the Parent Board Recommendation in the Proxy Statement. Except as required by applicable Law solely in response to a Parent Intervening Event, the Parent Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Board Recommendation (a “Modification in Recommendation”); provided, that the Parent Board (and no committee or subgroup thereof) shall not be entitled to make, or agree or resolve to make, a Modification in Recommendation until (i) Parent delivers to the Company a written notice (a “Parent Intervening Event Notice”) advising the Company that the Parent Board proposes to take such action and containing, in reasonable detail, the material facts underlying the Parent Board’s determination that a Parent Intervening Event has occurred, (ii) until 5:00 p.m., Eastern Time, on the fifth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. Eastern Time on the fifth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (it being understood that any material development with respect to an Parent Intervening Event shall require a new notice but with an additional three-Business Day notice period (instead of five-Business Day) period from the date of such notice), the “Parent Intervening Event Notice Period”), Parent and its Representatives shall have negotiated in good faith with the Company and its Representatives regarding any revisions or adjustments proposed by the Company to the terms and conditions of this Agreement as would enable Parent to proceed with its recommendation of this Agreement and the Transactions and not make such Modification in Recommendation and (iii) if the Company requested negotiations in accordance with clause (ii), Parent may make a Modification in Recommendation only if the Parent Board, after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that the Company shall have, prior to the expiration of the five-Business Day period, offered in writing in a manner that would form a binding Contract if accepted by Parent (and the other action applicable parties hereto), reaffirms in good faith (after consultation with its outside legal counsel) that the failure to make a Modification in Recommendation would violate applicable Law. For the avoidance of doubt, a Modification in Recommendation will not affect Parent’s obligations pursuant to this Section 7.2 (other than qualifying to do business as set forth in any jurisdiction the immediately preceding sentence) or elsewhere in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or "blue sky" Laws, and the rules and regulations thereunder in connection with the issuance of any Parent Stockthis Agreement.
(c) Parent shall promptly respond To the fullest extent permitted by applicable Law, (x) Parent’s obligations to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable efforts to cause the Proxy Statement to be cleared by the SEC as promptly as practicable. Parent shall also take any and all actions required to satisfy the requirements of the Exchange Act with respect to the Proxy Statement. Parent will notify the Company promptly after it receives notice of: (i) the time when the preliminary Proxy Statement has been filed; (ii) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; (iii) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC; (iv) the filing of any supplement or amendment to the Proxy Statement; (v) any request by the SEC for amendment of the Proxy Statement; (vi) any comments from the SEC relating to the Proxy Statement and responses thereto; and (vii) requests by the SEC for additional information, and in each case Parent shall provide the Company with copies of all written correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand.
(d) As soon as practicable following the SEC completing its review of the Proxy Statement (or the expiration of the waiting period in Rule 14a-6(a) in the event the SEC does not review the Proxy Statement) (either such establish a record date, the "SEC Clearance Date"), but not later than five (5) Business Days thereafter, Parent shall (i) distribute the Proxy Statement to the Parent Shareholders, (ii) having, prior to the SEC Clearance Date, established the record date therefor, or duly call, give notice of, convene and hold the Special Meeting shall not be affected by any Modification in accordance with Recommendation, and (y) Parent agrees that if the IBCL Parent Stockholder Approval shall not have been obtained at any such Parent Stockholders’ Meeting, then Parent shall promptly continue to take all such commercially reasonable actions, including the actions required by this Section 7.2, and subject hold such additional Special Meetings in order to obtain the other provisions of this Agreement, Parent Stockholder Approval. Parent may only (iiiand upon written request from the Company shall) hold adjourn the Special Meeting on a day not more than thirty (30) days after the date on which Parent mails the Proxy Statement to the Parent Shareholders and (iv) subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the Parent Shareholder Matters. Notwithstanding the foregoing provisions of this Section 6.4(d), Parent shall have the right to make one or more successive postponements or adjournments of the Special Meeting, (i) after consultation with to solicit additional proxies for the Company and purpose of obtaining the Securityholder Representative, if, as of the time for which the Special Meeting is originally scheduled, there are insufficient Parent Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Special MeetingStockholder Approval, (ii) for the absence of a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that Parent has determined in good faith after consultation with outside legal counsel is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by Parent Stockholders prior to the CompanySpecial Meeting; provided, in order to solicit additional proxies from Parent Shareholders for purposes of obtaining approval of the Necessary Shareholder Mattersthat, or (iii) with without the consent of the Company, the Special Meeting (x) may not be adjourned to a date that is more than fifteen (15) Business Days after the date for which the Special Meeting was originally scheduled (excluding any adjournments required by applicable Law) and (y) shall not be unreasonably withheld, conditioned, or delayed, provided that in held later than three (3) Business Days prior to the event of a postponement or adjournment, the Special Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.
(e) Outside Date. Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the IBCL, as applicable, in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Parent and keep the Company shall each ensure that reasonably informed regarding all matters relating to the Proxy Statement does not, as of the date on which it is first distributed to Parent Shareholders Proposals and as of the date of the Special Meeting, contain including by promptly furnishing any untrue statement of a material fact voting or omit to state a material fact necessary in order to make the statements made in light of the circumstances under which they were made, not misleading (provided that no party to this Agreement shall be responsible for the accuracy or completeness of proxy solicitation reports received by Parent and similar updates regarding any information relating to another party or any other information furnished by another party for inclusion in the Proxy Statement). If at any time prior to the Effective Time any information relating to the parties to this Agreement, or any of their respective Affiliates, officers or directors, should be discovered by any party that should be set forth in an amendment or supplement to the Proxy Statement, so that any of such documents would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (i) the party that discovers such information shall promptly notify the other parties, (ii) Parent shall promptly correct any information in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect and (iii) Parent shall take all steps necessary to amend or supplement the Proxy Statement, as applicable, and to cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and disseminated to Parent Shareholders to the extent required by applicable Legal Requirement; provided that the delivery of such notice and the filing of any such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any party hereunder or otherwise affect the remedies available hereunder to any partyredemptions.
(f) Parent, acting through the Parent Board, shall include in the Proxy Statement the recommendation of the Parent Board that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters, and shall use commercially reasonable efforts to (i) solicit from the holders of Parent Common Shares proxies in favor of the adoption of this Agreement and (ii) otherwise take all actions necessary or advisable to obtain the approval of the Parent Shareholder Matters. Neither the Parent Board nor any committee or agent or representative thereof shall withdraw, withhold, amend, modify or materially qualify or propose to withdraw, withhold, amend, modify or materially qualify, the Parent Board's recommendation that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters.
(g) Without the prior written consent of the Company or as required by applicable Legal Requirement, (i) the Parent Shareholder Matters shall be the only matters that Parent shall propose to be acted on by the holders of Parent Common Shares at the Special Meeting and Parent shall not submit any other proposal to such holders in connection with the Special Meeting or otherwise (including any proposal inconsistent with the approval of the Parent Shareholder Matters) and (ii) Parent shall not call any meeting of holders of Parent Common Shares prior to the Special Meeting.
(h) Immediately following the execution and delivery of this Agreement, Parent, as sole stockholder of Merger Sub, shall adopt this Agreement and approve the First Merger, in accordance with the Delaware Law.
(i) Immediately following the execution and delivery of this Agreement, Parent, as sole member of Merger Sub LLC, shall adopt this Agreement and approve the Second Merger, in accordance with the Delaware Limited Liability Company Act, as amended.
Appears in 1 contract
Parent Special Meeting. (a) As soon as reasonably practicable (and in any event within three (3) days) following the execution and delivery of this Agreement, Parent shall prepare and file with the SEC a proxy statement (the "Proxy Statement"), to be used for the purpose of soliciting proxies from the shareholders of Parent ("Parent Shareholders") to vote in favor of (i) the adoption of an amendment to the articles of incorporation of Parent, to be filed immediately prior to the Effective Time, to approve an increase in the authorized shares of Parent to 75,000,000 shares, consisting of 74,000,000 common shares and 1,000,000 preferred shares (the "Parent Charter Amendment", and all such proposals necessary to adopt the Parent Charter Amendment, the "Charter Proposals"), (ii) the issuance of the Parent Common Shares to be issued as part of the Merger Consideration and any shares that may become issuable as part of the Financing (or any Alternate Financing) pursuant to applicable NASDAQ listing rules (the "NASDAQ Proposal"), (iii) the adoption of an amendment to the Equity Plan, the form of which amendment shall be agreed to by the parties to this Agreement and approved by the Parent Board prior to filing the Proxy Statement, to increase the number of shares available for awards thereunder by up to 1,500,000 shares, (iv) to adjourn the shareholder meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the transactions contemplated by this Agreement for any reason, and (v) the approval of any other proposals reasonably agreed among Parent and the Company (collectively, the "Parent Shareholder Matters") at a meeting of Parent Shareholders to be called and held for such purpose (the "Special Meeting"). The Charter Proposals and the NASDAQ Proposal are referred to herein as the "Necessary Shareholder Matters".
(b) Parent shall take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or "blue sky" Laws, and the rules and regulations thereunder in connection with the issuance of any Parent Stock.
(c) Parent shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable efforts to cause the Proxy Statement to be cleared by the SEC to, as promptly as practicable. Parent shall also take any and all actions required to satisfy the requirements of the Exchange Act with respect to the Proxy Statement. Parent will notify the Company promptly after it receives notice of: , (i) establish the time when the preliminary Proxy Statement has been filed; (ii) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; (iii) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC; (iv) the filing of any supplement or amendment to the Proxy Statement; (v) any request by the SEC for amendment of the Proxy Statement; (vi) any comments from the SEC relating to the Proxy Statement and responses thereto; and (vii) requests by the SEC for additional information, and in each case Parent shall provide the Company with copies of all written correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand.
(d) As soon as practicable following the SEC completing its review of the Proxy Statement (or the expiration of the waiting period in Rule 14a-6(a) in the event the SEC does not review the Proxy Statement) (either such record date, the "SEC Clearance Date"), but not later than five (5) Business Days thereafter, Parent shall (i) distribute the Proxy Statement to the Parent Shareholders, (ii) having, prior to the SEC Clearance Date, established the record date therefor, or duly call, give notice of, convene and hold the Special Meeting in accordance with the IBCL and subject to the other provisions of this Agreement, (iii) hold the Special Meeting on a day not more than thirty (30) days after the date on which Parent mails the Proxy Statement to the Parent Shareholders and (iv) subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the Parent Shareholder Matters. Notwithstanding the foregoing provisions of this Section 6.4(d), Parent shall have the right to make one or more successive postponements or adjournments of the Special Meeting, (i) after consultation with the Company and the Securityholder Representative, if, as of the time for which the Special Meeting is originally scheduled, there are insufficient Parent Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Special MeetingDGCL, (ii) after consultation the Registration Statement has been declared effective under the Securities Act, cause the Proxy Statement to be disseminated to Parent Stockholders in compliance with applicable Law and (iii) after the Registration Statement has been declared effective under the Securities Act, solicit proxies from the holders of Parent Common Stock to vote in accordance with the Companyrecommendation of the Parent Board with respect to each of the Proposals.
(b) Parent shall, through the Parent Board, recommend to its stockholders that they approve the Proposals (the “Parent Board Recommendation”) and shall include the Parent Board Recommendation in the Proxy Statement. The Parent Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Board Recommendation.
(c) To the fullest extent permitted by applicable Law, Xxxxxx agrees that if the Parent Stockholder Approval shall not have been obtained at any such Special Meeting, then Parent shall promptly continue to take all such actions necessary, proper or advisable, including the actions required by this Section 7.2, and hold such additional Special Meetings in order to obtain the Parent Stockholder Approval. Parent may only adjourn the Special Meeting (i) to solicit additional proxies from Parent Shareholders for purposes the purpose of obtaining approval the Parent Stockholder Approval, (ii) for the absence of the Necessary Shareholder Matters, or a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that Parent has determined in good faith after consultation with outside legal counsel is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by Parent Stockholders prior to the Special Meeting; provided, that, without the consent of the Company, which shall not be unreasonably withheld, conditioned, or delayed, provided that in the event of a postponement or adjournment, the Special Meeting shall not be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.
held later than three (e3) Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the IBCL, as applicable, in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Parent and the Company shall each ensure that the Proxy Statement does not, as of the date on which it is first distributed to Parent Shareholders and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made in light of the circumstances under which they were made, not misleading (provided that no party to this Agreement shall be responsible for the accuracy or completeness of any information relating to another party or any other information furnished by another party for inclusion in the Proxy Statement). If at any time Business Days prior to the Effective Time any information relating to the parties to this Agreement, or any of their respective Affiliates, officers or directors, should be discovered by any party that should be set forth in an amendment or supplement to the Proxy Statement, so that any of such documents would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (i) the party that discovers such information shall promptly notify the other parties, (ii) Parent shall promptly correct any information in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect and (iii) Parent shall take all steps necessary to amend or supplement the Proxy Statement, as applicable, and to cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and disseminated to Parent Shareholders to the extent required by applicable Legal Requirement; provided that the delivery of such notice and the filing of any such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any party hereunder or otherwise affect the remedies available hereunder to any partyOutside Date.
(f) Parent, acting through the Parent Board, shall include in the Proxy Statement the recommendation of the Parent Board that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters, and shall use commercially reasonable efforts to (i) solicit from the holders of Parent Common Shares proxies in favor of the adoption of this Agreement and (ii) otherwise take all actions necessary or advisable to obtain the approval of the Parent Shareholder Matters. Neither the Parent Board nor any committee or agent or representative thereof shall withdraw, withhold, amend, modify or materially qualify or propose to withdraw, withhold, amend, modify or materially qualify, the Parent Board's recommendation that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters.
(g) Without the prior written consent of the Company or as required by applicable Legal Requirement, (i) the Parent Shareholder Matters shall be the only matters that Parent shall propose to be acted on by the holders of Parent Common Shares at the Special Meeting and Parent shall not submit any other proposal to such holders in connection with the Special Meeting or otherwise (including any proposal inconsistent with the approval of the Parent Shareholder Matters) and (ii) Parent shall not call any meeting of holders of Parent Common Shares prior to the Special Meeting.
(h) Immediately following the execution and delivery of this Agreement, Parent, as sole stockholder of Merger Sub, shall adopt this Agreement and approve the First Merger, in accordance with the Delaware Law.
(i) Immediately following the execution and delivery of this Agreement, Parent, as sole member of Merger Sub LLC, shall adopt this Agreement and approve the Second Merger, in accordance with the Delaware Limited Liability Company Act, as amended.
Appears in 1 contract
Parent Special Meeting. (a) As soon as reasonably practicable (and in any event within three (3) days) following the execution and delivery of this Agreement, Parent shall prepare and file with the SEC a proxy statement (the "Proxy Statement"), to be used for the purpose of soliciting proxies from the shareholders of Parent ("Parent Shareholders") to vote in favor of (i) the adoption of an amendment to the articles of incorporation of Parent, to be filed immediately prior to the Effective Time, to approve an increase in the authorized shares of Parent to 75,000,000 shares, consisting of 74,000,000 common shares and 1,000,000 preferred shares (the "Parent Charter Amendment", and all such proposals necessary to adopt the Parent Charter Amendment, the "Charter Proposals"), (ii) the issuance of the Parent Common Shares to be issued as part of the Merger Consideration and any shares that may become issuable as part of the Financing (or any Alternate Financing) pursuant to applicable NASDAQ listing rules (the "NASDAQ Proposal"), (iii) the adoption of an amendment to the Equity Plan, the form of which amendment shall be agreed to by the parties to this Agreement and approved by the Parent Board prior to filing the Proxy Statement, to increase the number of shares available for awards thereunder by up to 1,500,000 shares, (iv) to adjourn the shareholder meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the transactions contemplated by this Agreement for any reason, and (v) the approval of any other proposals reasonably agreed among Parent and the Company (collectively, the "Parent Shareholder Matters") at a meeting of Parent Shareholders to be called and held for such purpose (the "Special Meeting"). The Charter Proposals and the NASDAQ Proposal are referred to herein as the "Necessary Shareholder Matters".
(b) Parent shall take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or "blue sky" Laws, and the rules and regulations thereunder in connection with the issuance of any Parent Stock.
(c) Parent shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable efforts to cause the Proxy Statement to be cleared by the SEC to, as promptly as practicable. Parent shall also take any and all actions required to satisfy the requirements of the Exchange Act with respect to the Proxy Statement. Parent will notify the Company promptly after it receives notice of: , (i) establish the time when the preliminary Proxy Statement has been filed; (ii) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; (iii) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC; (iv) the filing of any supplement or amendment to the Proxy Statement; (v) any request by the SEC for amendment of the Proxy Statement; (vi) any comments from the SEC relating to the Proxy Statement and responses thereto; and (vii) requests by the SEC for additional information, and in each case Parent shall provide the Company with copies of all written correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand.
(d) As soon as practicable following the SEC completing its review of the Proxy Statement (or the expiration of the waiting period in Rule 14a-6(a) in the event the SEC does not review the Proxy Statement) (either such record date, the "SEC Clearance Date"), but not later than five (5) Business Days thereafter, Parent shall (i) distribute the Proxy Statement to the Parent Shareholders, (ii) having, prior to the SEC Clearance Date, established the record date therefor, or duly call, give notice of, convene and hold the Special Meeting in accordance with the IBCL and subject to the other provisions of this Agreement, (iii) hold the Special Meeting on a day not more than thirty (30) days after the date on which Parent mails the Proxy Statement to the Parent Shareholders and (iv) subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the Parent Shareholder Matters. Notwithstanding the foregoing provisions of this Section 6.4(d), Parent shall have the right to make one or more successive postponements or adjournments of the Special Meeting, (i) after consultation with the Company and the Securityholder Representative, if, as of the time for which the Special Meeting is originally scheduled, there are insufficient Parent Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Special MeetingDGCL, (ii) after consultation the Registration Statement has been declared effective under the Securities Act, cause the Proxy Statement to be disseminated to Parent’s stockholders in compliance with applicable Law and (iii) after the Registration Statement has been declared effective under the Securities Act, solicit proxies from the holders of Parent Common Stock to vote in accordance with the Companyrecommendation of the Parent Board with respect to each of the Proposals.
(b) Parent shall, through the Parent Board, recommend to its stockholders that they approve the Proposals (the “Parent Board Recommendation”) and shall include the Parent Board Recommendation in the Proxy Statement. The Parent Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Board Recommendation (a “Modification in Recommendation”).
(c) To the fullest extent permitted by applicable Law, (x) Parent’s obligations to establish a record date, or duly call, give notice of, convene and hold the Special Meeting shall not be affected by any Modification in Recommendation, and (y) Parent agrees that if the Parent Stockholder Approval shall not have been obtained at any such Parent Shareholders’ Meeting, then Parent shall promptly continue to take all such commercially reasonable actions, including the actions required by this Section 7.2, and hold such additional Special Meetings in order to obtain the Parent Stockholder Approval. Parent may only adjourn the Special Meeting (i) to solicit additional proxies from Parent Shareholders for purposes the purpose of obtaining approval the Parent Stockholder Approval, (ii) for the absence of the Necessary Shareholder Matters, or a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that Parent has determined in good faith after consultation with outside legal counsel is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by Parent Stockholders prior to the Special Meeting; provided, that, without the consent of the Company, the Special Meeting (x) may not be adjourned to a date that is more than fifteen (15) days after the date for which the Special Meeting was originally scheduled (excluding any adjournments required by applicable Law) and (y) shall not be unreasonably withheld, conditioned, or delayed, provided that in the event of a postponement or adjournment, the Special Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.
held later than three (e3) Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the IBCL, as applicable, in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Parent and the Company shall each ensure that the Proxy Statement does not, as of the date on which it is first distributed to Parent Shareholders and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made in light of the circumstances under which they were made, not misleading (provided that no party to this Agreement shall be responsible for the accuracy or completeness of any information relating to another party or any other information furnished by another party for inclusion in the Proxy Statement). If at any time Business Days prior to the Effective Time any information relating to the parties to this Agreement, or any of their respective Affiliates, officers or directors, should be discovered by any party that should be set forth in an amendment or supplement to the Proxy Statement, so that any of such documents would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (i) the party that discovers such information shall promptly notify the other parties, (ii) Parent shall promptly correct any information in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect and (iii) Parent shall take all steps necessary to amend or supplement the Proxy Statement, as applicable, and to cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and disseminated to Parent Shareholders to the extent required by applicable Legal Requirement; provided that the delivery of such notice and the filing of any such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any party hereunder or otherwise affect the remedies available hereunder to any partyOutside Date.
(f) Parent, acting through the Parent Board, shall include in the Proxy Statement the recommendation of the Parent Board that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters, and shall use commercially reasonable efforts to (i) solicit from the holders of Parent Common Shares proxies in favor of the adoption of this Agreement and (ii) otherwise take all actions necessary or advisable to obtain the approval of the Parent Shareholder Matters. Neither the Parent Board nor any committee or agent or representative thereof shall withdraw, withhold, amend, modify or materially qualify or propose to withdraw, withhold, amend, modify or materially qualify, the Parent Board's recommendation that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters.
(g) Without the prior written consent of the Company or as required by applicable Legal Requirement, (i) the Parent Shareholder Matters shall be the only matters that Parent shall propose to be acted on by the holders of Parent Common Shares at the Special Meeting and Parent shall not submit any other proposal to such holders in connection with the Special Meeting or otherwise (including any proposal inconsistent with the approval of the Parent Shareholder Matters) and (ii) Parent shall not call any meeting of holders of Parent Common Shares prior to the Special Meeting.
(h) Immediately following the execution and delivery of this Agreement, Parent, as sole stockholder of Merger Sub, shall adopt this Agreement and approve the First Merger, in accordance with the Delaware Law.
(i) Immediately following the execution and delivery of this Agreement, Parent, as sole member of Merger Sub LLC, shall adopt this Agreement and approve the Second Merger, in accordance with the Delaware Limited Liability Company Act, as amended.
Appears in 1 contract
Parent Special Meeting. (a) As soon Parent shall, as promptly as reasonably practicable (and in any event within three (3) days) following the execution and delivery of this Agreementpracticable, Parent shall prepare and file with the SEC a proxy statement (the "Proxy Statement"), to be used for the purpose of soliciting proxies from the shareholders of Parent ("Parent Shareholders") to vote in favor of (i) establish the adoption of an amendment to the articles of incorporation of Parentrecord date, to be filed immediately prior to the Effective Timeor duly call, to approve an increase in the authorized shares of Parent to 75,000,000 shares, consisting of 74,000,000 common shares and 1,000,000 preferred shares (the "Parent Charter Amendment"give notice of, and all such proposals necessary to adopt convene and hold the Parent Charter Amendment, Special Meeting in accordance with the "Charter Proposals")DGCL, (ii) after the issuance Registration Statement has been declared effective under the Securities Act, cause the Proxy Statement to be disseminated to Parent’s stockholders in compliance with applicable Law and (iii) after the Registration Statement has been declared effective under the Securities Act, solicit proxies from the holders of Parent Common Stock to vote in accordance with the recommendation of the Parent Common Shares Board with respect to be issued as part each of the Merger Consideration and any shares that may become issuable as part of the Financing (or any Alternate Financing) pursuant to applicable NASDAQ listing rules (the "NASDAQ Proposal"), (iii) the adoption of an amendment to the Equity Plan, the form of which amendment shall be agreed to by the parties to this Agreement and approved by the Parent Board prior to filing the Proxy Statement, to increase the number of shares available for awards thereunder by up to 1,500,000 shares, (iv) to adjourn the shareholder meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the transactions contemplated by this Agreement for any reason, and (v) the approval of any other proposals reasonably agreed among Parent and the Company (collectively, the "Parent Shareholder Matters") at a meeting of Parent Shareholders to be called and held for such purpose (the "Special Meeting"). The Charter Proposals and the NASDAQ Proposal are referred to herein as the "Necessary Shareholder Matters"Proposals.
(b) Parent shall, through the Parent Board, recommend to its stockholders that they approve the Proposals (the “Parent Board Recommendation”) and shall include the Parent Board Recommendation in the Proxy Statement. Except as required by applicable Law solely in response to a Parent Intervening Event, the Parent Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Board Recommendation (a “Modification in Recommendation”); provided, however, that the Parent Board (and any committee or subgroup thereof) shall not be entitled to make, or agree or resolve to make, a Modification in Recommendation until (i) Parent delivers to the Company a written notice (a “Parent Intervening Event Notice”) advising the Company that the Parent Board proposes to take such action and containing, in detail, the material facts underlying the Parent Board’s determination that a Parent Intervening Event has occurred, (ii) until 5:00 p.m., Eastern Time, on the fifth Business Day immediately following the day on which Parent delivers the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. Eastern Time on the fifth Business Day immediately following the day on which Parent delivers the Parent Intervening Event Notice (it being understood that any material development with respect to an Parent Intervening Event shall require a new notice but with an additional three-Business Day notice period (instead of five-Business Day) period from the date of such notice), the “Parent Intervening Event Notice Period”), Parent and its Representatives shall negotiate in good faith with the Company and its Representatives regarding any revisions or adjustments proposed by the Company to the terms and conditions of this Agreement as will enable Parent to proceed with its recommendation of this Agreement and the Transactions and not make such Modification in Recommendation and (iii) if the Company requests negotiations in accordance with clause (ii), Parent may make a Modification in Recommendation only if the Parent Board, after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that the Company shall, prior to the expiration of the five-Business Day period, offer in writing in a manner that would form a binding Contract if accepted by Parent (and the other action applicable parties hereto), reaffirms in good faith (after consultation with its outside legal counsel) that the failure to make a Modification in Recommendation would violate applicable Law. For the avoidance of doubt, a Modification in Recommendation will not affect Parent’s obligations pursuant to this Section 7.2 (other than qualifying to do business as set forth in any jurisdiction the immediately preceding sentence) or elsewhere in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or "blue sky" Laws, and the rules and regulations thereunder in connection with the issuance of any Parent Stockthis Agreement.
(c) Parent shall promptly respond To the fullest extent permitted by applicable Law, (x) Parent’s obligations to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable efforts to cause the Proxy Statement to be cleared by the SEC as promptly as practicable. Parent shall also take any and all actions required to satisfy the requirements of the Exchange Act with respect to the Proxy Statement. Parent will notify the Company promptly after it receives notice of: (i) the time when the preliminary Proxy Statement has been filed; (ii) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; (iii) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC; (iv) the filing of any supplement or amendment to the Proxy Statement; (v) any request by the SEC for amendment of the Proxy Statement; (vi) any comments from the SEC relating to the Proxy Statement and responses thereto; and (vii) requests by the SEC for additional information, and in each case Parent shall provide the Company with copies of all written correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand.
(d) As soon as practicable following the SEC completing its review of the Proxy Statement (or the expiration of the waiting period in Rule 14a-6(a) in the event the SEC does not review the Proxy Statement) (either such establish a record date, the "SEC Clearance Date"), but not later than five (5) Business Days thereafter, Parent shall (i) distribute the Proxy Statement to the Parent Shareholders, (ii) having, prior to the SEC Clearance Date, established the record date therefor, or duly call, give notice of, convene and hold the Special Meeting shall not be affected by any Modification in accordance with Recommendation, and (y) Parent agrees that if the IBCL Parent Stockholder Approval shall not have been obtained at any such Parent Stockholders’ Meeting, then Parent shall promptly continue to take all such commercially reasonable actions, including the actions required by this Section 7.2, and subject hold such additional Special Meetings in order to obtain the other provisions of this Agreement, Parent Stockholder Approval. Parent may only (iiiand upon written request from the Company shall) hold adjourn the Special Meeting on a day not more than thirty (30) days after the date on which Parent mails the Proxy Statement to the Parent Shareholders and (iv) subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the Parent Shareholder Matters. Notwithstanding the foregoing provisions of this Section 6.4(d), Parent shall have the right to make one or more successive postponements or adjournments of the Special Meeting, (i) after consultation with to solicit additional proxies for the Company and purpose of obtaining the Securityholder Representative, if, as of the time for which the Special Meeting is originally scheduled, there are insufficient Parent Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Special MeetingStockholder Approval, (ii) after consultation with due to the Company, in order to solicit additional proxies from Parent Shareholders for purposes absence of obtaining approval of the Necessary Shareholder Mattersa quorum, or (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that Parent has determined in good faith after consultation with outside legal counsel is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by Parent Stockholders prior to the Special Meeting; provided, that, without the consent of the Company, the Special Meeting (x) may not be adjourned to a date that is more than fifteen (15) Business Days after the date for which the Special Meeting was originally scheduled (excluding any adjournments required by applicable Law) and (y) shall not be unreasonably withheld, conditioned, or delayed, provided that in held later than three (3) Business Days prior to the event of a postponement or adjournment, the Special Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.
(e) Outside Date. Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the IBCL, as applicable, in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Parent and keep the Company shall each ensure that informed regarding all matters relating to the Proxy Statement does not, as of the date on which it is first distributed to Parent Shareholders Proposals and as of the date of the Special Meeting, contain including by promptly furnishing any untrue statement of a material fact voting or omit to state a material fact necessary in order to make the statements made in light of the circumstances under which they were made, not misleading (provided that no party to this Agreement shall be responsible for the accuracy or completeness of proxy solicitation reports received by Parent and similar updates regarding any information relating to another party or any other information furnished by another party for inclusion in the Proxy Statement). If at any time prior to the Effective Time any information relating to the parties to this Agreement, or any of their respective Affiliates, officers or directors, should be discovered by any party that should be set forth in an amendment or supplement to the Proxy Statement, so that any of such documents would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (i) the party that discovers such information shall promptly notify the other parties, (ii) Parent shall promptly correct any information in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect and (iii) Parent shall take all steps necessary to amend or supplement the Proxy Statement, as applicable, and to cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and disseminated to Parent Shareholders to the extent required by applicable Legal Requirement; provided that the delivery of such notice and the filing of any such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any party hereunder or otherwise affect the remedies available hereunder to any partyredemptions.
(f) Parent, acting through the Parent Board, shall include in the Proxy Statement the recommendation of the Parent Board that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters, and shall use commercially reasonable efforts to (i) solicit from the holders of Parent Common Shares proxies in favor of the adoption of this Agreement and (ii) otherwise take all actions necessary or advisable to obtain the approval of the Parent Shareholder Matters. Neither the Parent Board nor any committee or agent or representative thereof shall withdraw, withhold, amend, modify or materially qualify or propose to withdraw, withhold, amend, modify or materially qualify, the Parent Board's recommendation that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters.
(g) Without the prior written consent of the Company or as required by applicable Legal Requirement, (i) the Parent Shareholder Matters shall be the only matters that Parent shall propose to be acted on by the holders of Parent Common Shares at the Special Meeting and Parent shall not submit any other proposal to such holders in connection with the Special Meeting or otherwise (including any proposal inconsistent with the approval of the Parent Shareholder Matters) and (ii) Parent shall not call any meeting of holders of Parent Common Shares prior to the Special Meeting.
(h) Immediately following the execution and delivery of this Agreement, Parent, as sole stockholder of Merger Sub, shall adopt this Agreement and approve the First Merger, in accordance with the Delaware Law.
(i) Immediately following the execution and delivery of this Agreement, Parent, as sole member of Merger Sub LLC, shall adopt this Agreement and approve the Second Merger, in accordance with the Delaware Limited Liability Company Act, as amended.
Appears in 1 contract
Samples: Merger Agreement (Monterey Capital Acquisition Corp)
Parent Special Meeting. (a) As soon as reasonably practicable (Subject to Section 5.04 and in any event within three (3) days) following the execution and delivery of this AgreementSection 5.05, Parent shall prepare and file with the SEC a proxy statement (the "Proxy Statement"), to be used for the purpose of soliciting proxies from the shareholders of Parent ("Parent Shareholders") to vote in favor of (i) the adoption of an amendment to the articles of incorporation of Parent, to be filed immediately prior to the Effective Time, to approve an increase in the authorized shares of Parent to 75,000,000 shares, consisting of 74,000,000 common shares and 1,000,000 preferred shares (the "Parent Charter Amendment", and all such proposals necessary to adopt the Parent Charter Amendment, the "Charter Proposals"), (ii) the issuance of the Parent Common Shares to be issued as part of the Merger Consideration and any shares that may become issuable as part of the Financing (or any Alternate Financing) pursuant to applicable NASDAQ listing rules (the "NASDAQ Proposal"), (iii) the adoption of an amendment to the Equity Plan, the form of which amendment shall be agreed to by the parties to this Agreement and approved by the Parent Board prior to filing the Proxy Statement, to increase the number of shares available for awards thereunder by up to 1,500,000 shares, (iv) to adjourn the shareholder meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the transactions contemplated by this Agreement for any reason, and (v) the approval of any other proposals reasonably agreed among Parent and the Company (collectively, the "Parent Shareholder Matters") at a meeting of Parent Shareholders to be called and held for such purpose (the "Special Meeting"). The Charter Proposals and the NASDAQ Proposal are referred to herein as the "Necessary Shareholder Matters".
(b) Parent shall take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or "blue sky" Laws, and the rules and regulations thereunder in connection with the issuance of any Parent Stock.
(c) Parent shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable efforts to cause the Proxy Statement to be cleared by the SEC as promptly as practicable. Parent shall also take any and all actions required to satisfy the requirements of the Exchange Act with respect to the Proxy Statement. Parent will notify the Company promptly after it receives notice of: (i) the time when the preliminary Proxy Statement has been filed; (ii) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; (iii) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC; (iv) the filing of any supplement or amendment to the Proxy Statement; (v) any request by the SEC for amendment of the Proxy Statement; (vi) any comments from the SEC relating to the Proxy Statement and responses thereto; and (vii) requests by the SEC for additional information, and in each case Parent shall provide the Company with copies of all written correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand.
(d) As soon as practicable following the SEC completing its review effectiveness of the Proxy Parent Registration Statement (or the expiration of the waiting period in Rule 14a-6(a) in the event by the SEC does not review and after reasonable consultation with the Proxy Statement) (either such date, the "SEC Clearance Date"), but not later than five (5) Business Days thereafterCompany, Parent shall (i) distribute the Proxy Statement to the Parent Shareholders, (ii) having, prior to the SEC Clearance Date, established establish the record date therefordate, and duly call, give notice of, convene and hold the Special Meeting in accordance with the IBCL Nevada law (and subject to the other provisions of this Agreement, (iii) hold the Special Meeting on a day not more than thirty (30) days in any event within 10 Business Days after the date on which of effectiveness of the Parent mails Registration Statement, unless otherwise required by applicable Laws), (ii) as promptly as practicable after the Parent Registration Statement has been declared effective under the Securities Act, Parent shall cause the Proxy Statement to the Parent Shareholders be disseminated to Parent’s stockholders in compliance with applicable Law and (iviii) subject to as promptly as practicable after the other provisions mailing of this Agreementthe Proxy Statement, Parent shall solicit proxies from such the holders of Parent Common Stock to vote in favor accordance with the recommendation of the Parent Shareholder Matters. Notwithstanding Board with respect to the foregoing provisions Parent Stock Issuance, the adjournment of such meeting as permitted by this Section 6.4(d5.08, and any other proposal or proposals that Parent reasonably deems necessary or desirable to consummate the transactions contemplated by this Agreement (the “Parent Proposals”); provided, however, for the avoidance of doubt, Parent shall have the right to make one may postpone or more successive postponements or adjournments of adjourn the Special Stockholders Meeting, : (i) after consultation with the Company and the Securityholder Representative, if, as of the time for which the Special Meeting is originally scheduled, there are insufficient Parent Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Special Meeting, (ii) after consultation with the Company, in order to solicit additional proxies from Parent Shareholders for purposes of obtaining approval of the Necessary Shareholder Matters, or (iii) with the consent of the Company, which shall not be unreasonably withheld, conditioned, or delayed, provided that in ; (ii) for the event absence of a postponement quorum; or adjournment, (iii) to allow reasonable additional time (not to exceed 20 days) for the Special Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.
(e) Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the IBCL, as applicable, in the preparation, filing and distribution of any supplemental or amended disclosure with respect to the Proxy StatementTransactions, which the Parent Board has determined in good faith (after consultation with its outside legal counsel) is necessary under applicable Laws and for such supplemental or amended disclosure to be disseminated to and reviewed by Parent’s stockholders prior to the Special Stockholders Meeting. Without limiting the generality of the foregoing, Parent’s requirement to call and hold the Special Stockholders Meeting shall not be affected by the commencement, public proposal, public disclosure or communication to Parent of any Takeover Proposal (Parent) or the Parent Board making a Parent Adverse Recommendation Change. Subject to Section 5.05, unless Parent shall have made a Parent Adverse Recommendation Change, the solicitation of proxies thereunder, and Parent Board shall use its reasonable best efforts to solicit the calling and holding of Requisite Parent Vote at the Special Meeting. Parent and the Company shall each ensure that the Proxy Statement does not, as of the date on which it is first distributed to Parent Shareholders and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made in light of the circumstances under which they were made, not misleading (provided that no party to this Agreement shall be responsible for the accuracy or completeness of any information relating to another party or any other information furnished by another party for inclusion in the Proxy Statement). If at any time prior Prior to the Effective Time any information relating to the parties to this Agreement, or any of their respective Affiliates, officers or directors, should be discovered by any party that should be set forth in an amendment or supplement to the Proxy Statement, so that any of such documents would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (i) the party that discovers such information shall promptly notify the other parties, (ii) Parent shall promptly correct any information in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect and (iii) Parent shall take all steps necessary to amend or supplement the Proxy Statement, as applicable, and to cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and disseminated to Parent Shareholders to the extent required by applicable Legal Requirement; provided that the delivery of such notice and the filing of any such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any party hereunder or otherwise affect the remedies available hereunder to any party.
(f) Parent, acting through the Parent Board, shall include in the Proxy Statement the recommendation mailing of the Parent Board Registration Statement, Parent shall be entitled to engage a proxy solicitor that is reasonably satisfactory to the holders of Company, and Parent Common Shares vote in favor of shall keep the adoption Company reasonably informed regarding its solicitation efforts and proxy tallies following the mailing of the Parent Shareholder Matters, and shall use commercially reasonable efforts to (i) solicit from the holders of Parent Common Shares proxies in favor of the adoption of this Agreement and (ii) otherwise take all actions necessary or advisable to obtain the approval of the Parent Shareholder Matters. Neither the Parent Board nor any committee or agent or representative thereof shall withdraw, withhold, amend, modify or materially qualify or propose to withdraw, withhold, amend, modify or materially qualify, the Parent Board's recommendation that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder MattersRegistration Statement.
(g) Without the prior written consent of the Company or as required by applicable Legal Requirement, (i) the Parent Shareholder Matters shall be the only matters that Parent shall propose to be acted on by the holders of Parent Common Shares at the Special Meeting and Parent shall not submit any other proposal to such holders in connection with the Special Meeting or otherwise (including any proposal inconsistent with the approval of the Parent Shareholder Matters) and (ii) Parent shall not call any meeting of holders of Parent Common Shares prior to the Special Meeting.
(h) Immediately following the execution and delivery of this Agreement, Parent, as sole stockholder of Merger Sub, shall adopt this Agreement and approve the First Merger, in accordance with the Delaware Law.
(i) Immediately following the execution and delivery of this Agreement, Parent, as sole member of Merger Sub LLC, shall adopt this Agreement and approve the Second Merger, in accordance with the Delaware Limited Liability Company Act, as amended.
Appears in 1 contract
Samples: Merger Agreement (Vivakor, Inc.)
Parent Special Meeting. (a) As soon promptly as reasonably practicable after the Proxy Clearance Date, Parent shall convene and hold a special meeting of its stockholders (the “Parent Special Meeting”) for the purpose of obtaining the Requisite Parent Stockholder Vote, and Parent shall use its reasonable best efforts to obtain the Requisite Parent Stockholder Vote at the Parent Special Meeting, including by soliciting proxies as promptly as practicable in any event within three (3) days) following accordance with applicable Law. In connection therewith, prior to the execution Proxy Clearance Date, the Parent Board shall set a record date for determining the stockholders of Parent entitled to vote at the Parent Special Meeting, such record date to be mutually agreed with the Company. Parent shall comply with Law and delivery of all legal requirements applicable to such meeting, including the DGCL, Parent’s Organizational Documents and the Exchange Act, including Regulation 14A and Schedule 14A promulgated thereunder, as applicable. Notwithstanding anything to the contrary contained in this Agreement, Parent shall prepare and file with the SEC a proxy statement (the "Proxy Statement"), be entitled to be used for the purpose of soliciting proxies from the shareholders of Parent ("Parent Shareholders") to vote in favor of (i) the adoption of an amendment to the articles of incorporation of Parent, to be filed immediately prior to the Effective Time, to approve an increase in the authorized shares of Parent to 75,000,000 shares, consisting of 74,000,000 common shares and 1,000,000 preferred shares (the "Parent Charter Amendment", and all such proposals necessary to adopt postpone or adjourn the Parent Charter Amendment, the "Charter Proposals"), (ii) the issuance of the Parent Common Shares to be issued as part of the Merger Consideration and any shares that may become issuable as part of the Financing (or any Alternate Financing) pursuant to applicable NASDAQ listing rules (the "NASDAQ Proposal"), (iii) the adoption of an amendment to the Equity Plan, the form of which amendment shall be agreed to by the parties to this Agreement and approved by the Parent Board prior to filing the Proxy Statement, to increase the number of shares available for awards thereunder by up to 1,500,000 shares, (iv) to adjourn the shareholder meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the transactions contemplated by this Agreement for any reason, and (v) the approval of any other proposals reasonably agreed among Parent and the Company (collectively, the "Parent Shareholder Matters") at a meeting of Parent Shareholders to be called and held for such purpose (the "Special Meeting"). The Charter Proposals and the NASDAQ Proposal are referred to herein as the "Necessary Shareholder Matters".
(b) Parent shall take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or "blue sky" Laws, and the rules and regulations thereunder in connection with the issuance of any Parent Stock.
(c) Parent shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable efforts to cause the Proxy Statement to be cleared by the SEC as promptly as practicable. Parent shall also take any and all actions required to satisfy the requirements of the Exchange Act with respect to the Proxy Statement. Parent will notify the Company promptly after it receives notice ofMeeting only: (i) the time when the preliminary Proxy Statement has been filed; (ii) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; (iii) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC; (iv) the filing of to ensure that any supplement or amendment to the Proxy Statement; (v) any request Statement that the Parent Board has reasonably determined in good faith after consultation with Parent’s outside legal counsel is required by the SEC applicable Law is disclosed to Parent’s stockholders and for such supplement or amendment of the Proxy Statement; (vi) any comments from the SEC relating to the Proxy Statement and responses thereto; and (vii) requests by the SEC for additional information, and in each case Parent shall provide the Company with copies of all written correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand.
(d) As soon as practicable following the SEC completing its review of the Proxy Statement (or the expiration of the waiting period in Rule 14a-6(a) in the event the SEC does not review the Proxy Statement) (either such date, the "SEC Clearance Date"), but not later than five (5) Business Days thereafter, Parent shall (i) distribute the Proxy Statement be promptly disseminated to Parent’s stockholders prior to the Parent Shareholders, Special Meeting; (ii) having, prior to the SEC Clearance Date, established the record date therefor, duly call, give notice of, convene and hold the Special Meeting in accordance with the IBCL and subject to the other provisions of this Agreement, (iii) hold the Special Meeting on a day not more than thirty (30) days after the date on which Parent mails the Proxy Statement to the Parent Shareholders and (iv) subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the Parent Shareholder Matters. Notwithstanding the foregoing provisions of this Section 6.4(d), Parent shall have the right to make one or more successive postponements or adjournments of the Special Meeting, (i) after consultation with the Company and the Securityholder Representative, if, as of the time for which the Parent Special Meeting is originally scheduledscheduled (as set forth in the Proxy Statement), there are insufficient shares of Parent Common Shares Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Parent Special Meeting, ; or (iiiii) after consultation with the Company, in order to solicit additional proxies from Parent Shareholders stockholders for purposes of obtaining approval of the Necessary Shareholder MattersRequisite Parent Stockholder Vote; provided, or (iii) with the consent of the Company, which shall not be unreasonably withheld, conditioned, or delayed, provided that in the event of a postponement or adjournmentadjournment pursuant to clause (i), (ii) or (iii) above, the Parent Special Meeting shall be reconvened as promptly as practicable following such time as and in any event no later than five (5) Business Days after the matters described date for which the Parent Special Meeting was originally scheduled (excluding any adjournments required by applicable Law) and in such clauses have been resolvedany event shall not be held later than three (3) Business Days prior to the Termination Date.
(eb) Parent shall comply Unless this Agreement has been earlier validly terminated in accordance with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the IBCL, as applicable, in the preparation, filing and distribution of the Proxy StatementSection 9.1, the solicitation Parent Stockholder Matters shall be submitted to Parent’s stockholders at the Parent Special Meeting for the purpose of proxies thereunder, obtaining the Requisite Parent Stockholder Approval and the calling and holding of the Special Meeting. Parent and the Company shall each ensure that the Proxy Statement does not, as of the date on which it is first distributed to Parent Shareholders and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary nothing contained in order to make the statements made in light of the circumstances under which they were made, not misleading (provided that no party to this Agreement shall be responsible for the accuracy or completeness of any information relating deemed to another party or any other information furnished by another party for inclusion in the Proxy Statement). If at any time prior to the Effective Time any information relating to the parties to this Agreement, or any of their respective Affiliates, officers or directors, should be discovered by any party that should be set forth in an amendment or supplement to the Proxy Statement, so that any relieve Parent of such documents would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (i) the party that discovers such information shall promptly notify the other parties, (ii) Parent shall promptly correct any information in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect and (iii) Parent shall take all steps necessary to amend or supplement the Proxy Statement, as applicable, and to cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and disseminated to Parent Shareholders to the extent required by applicable Legal Requirement; provided that the delivery of such notice and the filing of any such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any party hereunder or otherwise affect the remedies available hereunder to any partyobligation.
(f) Parent, acting through the Parent Board, shall include in the Proxy Statement the recommendation of the Parent Board that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters, and shall use commercially reasonable efforts to (i) solicit from the holders of Parent Common Shares proxies in favor of the adoption of this Agreement and (ii) otherwise take all actions necessary or advisable to obtain the approval of the Parent Shareholder Matters. Neither the Parent Board nor any committee or agent or representative thereof shall withdraw, withhold, amend, modify or materially qualify or propose to withdraw, withhold, amend, modify or materially qualify, the Parent Board's recommendation that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters.
(g) Without the prior written consent of the Company or as required by applicable Legal Requirement, (i) the Parent Shareholder Matters shall be the only matters that Parent shall propose to be acted on by the holders of Parent Common Shares at the Special Meeting and Parent shall not submit any other proposal to such holders in connection with the Special Meeting or otherwise (including any proposal inconsistent with the approval of the Parent Shareholder Matters) and (ii) Parent shall not call any meeting of holders of Parent Common Shares prior to the Special Meeting.
(h) Immediately following the execution and delivery of this Agreement, Parent, as sole stockholder of Merger Sub, shall adopt this Agreement and approve the First Merger, in accordance with the Delaware Law.
(i) Immediately following the execution and delivery of this Agreement, Parent, as sole member of Merger Sub LLC, shall adopt this Agreement and approve the Second Merger, in accordance with the Delaware Limited Liability Company Act, as amended.
Appears in 1 contract
Samples: Merger Agreement (Skillsoft Corp.)
Parent Special Meeting. (a) As soon as reasonably practicable (and in any event within three (3) days) following the execution and delivery of this Agreement, Parent shall prepare and file with the SEC a proxy statement (the "Proxy Statement"), to be used for the purpose of soliciting proxies from the shareholders of Parent ("Parent Shareholders") to vote in favor of (i) the adoption of an amendment to the articles of incorporation of Parent, to be filed immediately prior to the Effective Time, to approve an increase in the authorized shares of Parent to 75,000,000 shares, consisting of 74,000,000 common shares and 1,000,000 preferred shares (the "Parent Charter Amendment", and all such proposals necessary to adopt the Parent Charter Amendment, the "Charter Proposals"), (ii) the issuance of the Parent Common Shares to be issued as part of the Merger Consideration and any shares that may become issuable as part of the Financing (or any Alternate Financing) pursuant to applicable NASDAQ listing rules (the "NASDAQ Proposal"), (iii) the adoption of an amendment to the Equity Plan, the form of which amendment shall be agreed to by the parties to this Agreement and approved by the Parent Board prior to filing the Proxy Statement, to increase the number of shares available for awards thereunder by up to 1,500,000 shares, (iv) to adjourn the shareholder meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the transactions contemplated by this Agreement for any reason, and (v) the approval of any other proposals reasonably agreed among Parent and the Company (collectively, the "Parent Shareholder Matters") at a meeting of Parent Shareholders to be called and held for such purpose (the "Special Meeting"). The Charter Proposals and the NASDAQ Proposal are referred to herein as the "Necessary Shareholder Matters".
(b) Parent shall take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or "blue sky" Laws, and the rules and regulations thereunder in connection with the issuance of any Parent Stock.
(c) Parent shall promptly respond to any SEC comments on the Proxy Statement and shall otherwise use commercially reasonable efforts to cause the Proxy Statement to be cleared by the SEC to, as promptly as practicable. Parent shall also take any and all actions required to satisfy the requirements of the Exchange Act with respect to the Proxy Statement. Parent will notify the Company promptly after it receives notice of: , (i) the time when the preliminary Proxy Statement has been filed; (ii) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; (iii) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC; (iv) the filing of any supplement or amendment to the Proxy Statement; (v) any request by the SEC for amendment of the Proxy Statement; (vi) any comments from the SEC relating to the Proxy Statement and responses thereto; and (vii) requests by the SEC for additional information, and in each case Parent shall provide the Company with copies of all written correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand.
(d) As soon as practicable following the SEC completing its review of the Proxy Statement (or the expiration of the waiting period in Rule 14a-6(a) in the event the SEC does not review the Proxy Statement) (either such date, the "SEC Clearance Date"), but not later than five (5) Business Days thereafter, Parent shall (i) distribute the Proxy Statement to the Parent Shareholders, (ii) having, prior to the SEC Clearance Date, established establish the record date therefor(which record date shall be mutually agreed with the Company), or duly call, give notice of, convene and hold the Special Meeting in accordance with the IBCL and subject to the other provisions of this Agreement, (iii) hold the Special Meeting on a day not more than thirty (30) days after the date on which Parent mails the Proxy Statement to the Parent Shareholders and (iv) subject to the other provisions of this Agreement, solicit proxies from such holders to vote in favor of the Parent Shareholder Matters. Notwithstanding the foregoing provisions of this Section 6.4(d), Parent shall have the right to make one or more successive postponements or adjournments of the Special Meeting, (i) after consultation with the Company and the Securityholder Representative, if, as of the time for which the Special Meeting is originally scheduled, there are insufficient Parent Common Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Special MeetingDGCL, (ii) after consultation the Registration Statement has been declared effective under the Securities Act, cause the Proxy Statement to be disseminated to Parent’s stockholders in compliance with applicable Law and (iii) after the Registration Statement has been declared effective under the Securities Act, solicit proxies from the holders of Parent Common Stock to vote in accordance with the Companyrecommendation of the Parent Board with respect to each of the Proposals.
(b) Parent shall, through the Parent Board, recommend to its stockholders that they approve the Proposals (the “Parent Board Recommendation”) and shall include the Parent Board Recommendation in the Proxy Statement. The Parent Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Board Recommendation (a “Modification in Recommendation”).
(c) To the fullest extent permitted by applicable Law, (x) Parent’s obligations to establish a record date, or duly call, give notice of, convene and hold the Special Meeting shall not be affected by any Modification in Recommendation, and (y) Parent agrees that if the Parent Stockholder Approval shall not have been obtained at any such Special Meeting, then Parent shall promptly continue to take all such commercially reasonable actions, including the actions required by this Section 7.2, and hold such additional Special Meetings in order to obtain the Parent Stockholder Approval. Parent may only adjourn the Special Meeting (i) to solicit additional proxies from Parent Shareholders for purposes the purpose of obtaining approval the Parent Stockholder Approval, (ii) for the absence of the Necessary Shareholder Matters, or a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that Parent has determined in good faith after consultation with outside legal counsel is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by Parent Stockholders prior to the Special Meeting; provided, that, without the consent of the Company, the Special Meeting (x) may not be adjourned to a date that is more than fifteen (15) days after the date for which the Special Meeting was originally scheduled (excluding any adjournments required by applicable Law) and (y) shall not be unreasonably withheld, conditioned, or delayed, provided that in the event of a postponement or adjournment, the Special Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.
held later than three (e3) Parent shall comply with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the IBCL, as applicable, in the preparation, filing and distribution of the Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the Special Meeting. Parent and the Company shall each ensure that the Proxy Statement does not, as of the date on which it is first distributed to Parent Shareholders and as of the date of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made in light of the circumstances under which they were made, not misleading (provided that no party to this Agreement shall be responsible for the accuracy or completeness of any information relating to another party or any other information furnished by another party for inclusion in the Proxy Statement). If at any time Business Days prior to the Effective Time any information relating to the parties to this Agreement, or any of their respective Affiliates, officers or directors, should be discovered by any party that should be set forth in an amendment or supplement to the Proxy Statement, so that any of such documents would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (i) the party that discovers such information shall promptly notify the other parties, (ii) Parent shall promptly correct any information in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect and (iii) Parent shall take all steps necessary to amend or supplement the Proxy Statement, as applicable, and to cause the Proxy Statement, as so amended or supplemented, to be filed with the SEC and disseminated to Parent Shareholders to the extent required by applicable Legal Requirement; provided that the delivery of such notice and the filing of any such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any party hereunder or otherwise affect the remedies available hereunder to any partyOutside Date.
(f) Parent, acting through the Parent Board, shall include in the Proxy Statement the recommendation of the Parent Board that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters, and shall use commercially reasonable efforts to (i) solicit from the holders of Parent Common Shares proxies in favor of the adoption of this Agreement and (ii) otherwise take all actions necessary or advisable to obtain the approval of the Parent Shareholder Matters. Neither the Parent Board nor any committee or agent or representative thereof shall withdraw, withhold, amend, modify or materially qualify or propose to withdraw, withhold, amend, modify or materially qualify, the Parent Board's recommendation that the holders of Parent Common Shares vote in favor of the adoption of the Parent Shareholder Matters.
(g) Without the prior written consent of the Company or as required by applicable Legal Requirement, (i) the Parent Shareholder Matters shall be the only matters that Parent shall propose to be acted on by the holders of Parent Common Shares at the Special Meeting and Parent shall not submit any other proposal to such holders in connection with the Special Meeting or otherwise (including any proposal inconsistent with the approval of the Parent Shareholder Matters) and (ii) Parent shall not call any meeting of holders of Parent Common Shares prior to the Special Meeting.
(h) Immediately following the execution and delivery of this Agreement, Parent, as sole stockholder of Merger Sub, shall adopt this Agreement and approve the First Merger, in accordance with the Delaware Law.
(i) Immediately following the execution and delivery of this Agreement, Parent, as sole member of Merger Sub LLC, shall adopt this Agreement and approve the Second Merger, in accordance with the Delaware Limited Liability Company Act, as amended.
Appears in 1 contract
