Preparation of Proxy Statement; Stockholders Meetings. As promptly as reasonably practicable following the date hereof, Parent and Company shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the issuance of Parent Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). Each of Parent and Company shall: use commercially reasonable efforts to have the Joint Proxy Statement/cleared by the SEC and the Form S-4 declared effective by the SEC, to keep the Form S-4 effective as long as is necessary to consummate the Merger and the other transactions contemplated hereby, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/or Form S-4 received from the SEC; cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/or the Form S-4; and promptly notify the other party if at any time prior to the Effective Time it discovers any information relating to either of the parties, or their respective affiliates, officers or directors, which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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 and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of Company and Parent. Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”) for the purpose of obtaining the Bye-Law Vote and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 2 contracts

Samples: Merger Agreement (CastlePoint Holdings, Ltd.), Merger Agreement (CastlePoint Holdings, Ltd.)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, Parent and the Company shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC mutually acceptable proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and Parent shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 ~~(of which the Joint Proxy Statement/Prospectus shall be a part)~~ with respect to the issuance of Parent Common Stock in the Merger (~~such~~ the "Form S-4, "). The Joint Proxy Statement/Prospectus will be included in and ~~any amendments or supplements thereto,~~ will constitute a part of the “Form ~~S-4”)~~S-4 as Parent's prospectus. The Form S-4 and the Joint Proxy Statement/Prospectus shall comply as to form in all material respects with the applicable provisions of the Securities Act and the Exchange Act and the rules and regulations thereunder. Each of Parent and the Company ~~shall:~~ shall use ~~commercially~~ reasonable best efforts to have ~~the Joint Proxy Statement/cleared by the SEC and~~ the Form S-4 declared effective by the ~~SEC,~~ SEC as promptly as practicable after the date hereof and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective~~thereby. Parent and the Company shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . Parent shall provide the ~~other party~~ Company with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint Proxy Statement/and the~~ Form S-4 prior to filing such with the SEC, and ~~each party~~ will promptly provide the ~~other party~~ Company with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain Notwithstanding any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect provision herein to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; advise the other partycontrary, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/or the Form S-4; and promptly notify the other party if at any time prior to the Effective Time it discovers any information relating to either of the parties, or their respective affiliates, officers or directors, which should be set forth in an no amendment or supplement (including by incorporation by reference) to ~~any of the Form S-4 or~~ the Joint Proxy Statement/Prospectus ~~so that such documents would not include 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 and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of Company and Parent. Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 ~~becomes effective (~~shall be made without the ~~“Company Stockholders Meeting”) for the purpose~~ approval of ~~obtaining the Bye-Law Vote and the Required Company Vote and~~both parties, ~~subject to Section 0~~which approval shall not be unreasonably withheld or delayed; provided, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held documents filed by ~~it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.~~a party which are

Appears in 2 contracts

Samples: Merger Agreement (Pharmacia Corp /De/), Merger Agreement (Pfizer Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent and Company~~ each of the parties hereto shall cooperate in preparing and ~~each~~ shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company~~ AMB stockholders at the ~~Company~~ AMB Stockholders Meeting and to the ~~Parent stockholders~~ ProLogis shareholders at the ~~Parent Stockholders~~ ProLogis Shareholders Meeting (such joint proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and ~~Parent~~ AMB (and, if required, New Pumpkin) shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the issuance of ~~Parent~~ AMB Common Stock in the Topco Merger (and, if required, with respect to the issuance of the New Pumpkin Common Stock in the Pumpkin Merger) (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). Each of ~~Parent and Company shall:~~ the parties hereto shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Topco Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. AMB and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ ProLogis shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or the Form S-4 received from the SEC; . Each party shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither Each party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use ~~commercially~~ its reasonable best efforts to take any action required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Mergers, and each party shall furnish all information concerning it and the holders of its capital stock or shares of beneficial interest as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ AMB Common Stock issuable in connection with the ~~Merger~~ Mergers for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Topco Effective ~~Time it discovers~~ Time, any information relating to either of the parties, or their respective affiliates, ~~officers~~ officers, trustees or directors, ~~which~~ should be discovered by either party, and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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~~ misleading, the party that discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ AMB and ~~Parent. Company~~ the shareholders of ProLogis. (b) AMB shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the “~~Company~~ AMB Stockholders Meeting”) for the purpose of obtaining the ~~Bye-Law Vote and the~~ AMB Required ~~Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote~~ Vote. Unless a Change in AMB Recommendation has occurred in accordance with ~~applicable legal requirements and (ii)~~ Section 5.4, the ~~Special Committee and~~ Board of Directors of ~~Company~~ AMB shall ~~include~~ use its reasonable best efforts to obtain from the ~~Bye-Law~~ stockholders of AMB the AMB Required Vote. AMB covenants that, unless a Change of AMB Recommendation has occurred in accordance with Section 5.4, AMB will, through its Board of Directors, recommend to its stockholders approval of the Topco Merger and ~~the Company Recommendation in~~ further covenants that the Joint Proxy Statement/~~Prospectus~~Prospectus and the Form S-4 will include such recommendation. ~~Parent~~ Notwithstanding the foregoing provisions of this Section 5.1(b), if, on a date for which the AMB Stockholders Meeting is scheduled, AMB has not received proxies representing a sufficient number of shares of AMB Common Stock to obtain the AMB Required Vote, whether or not a quorum is present, AMB shall have the right to make one or more successive postponements or adjournments of the AMB Stockholders Meeting; provided that the AMB Stockholders Meeting is not postponed or adjourned to a date that is more than 30 days after the date for which the AMB Stockholders Meeting was originally scheduled (excluding any adjourn- ments or postponements required by applicable Law). Nothing contained in this Agreement shall be deemed to relieve AMB of its obligation to submit the Topco Merger to its stockholders for a vote on the approval thereof. AMB agrees that, unless this Agreement shall have been terminated in accordance with Section 7.1, its obligations to hold the AMB Stockholders Meeting pursuant to this Section 5.1(b) shall not be affected by the commencement, public proposal, public disclosure or communication to AMB of any Acquisition Proposal or by any Change in AMB Recommendation. (c) ProLogis shall duly take all lawful action to call, give notice of, convene and hold a meeting of its ~~stockholders~~ shareholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the “~~Parent Stockholders~~ ProLogis Shareholders Meeting”) for the purpose of obtaining the ProLogis Required ~~Parent Vote and, subject to~~ Vote. Unless a Change in ProLogis Recommendation has occurred in accordance with Section 5.4, ~~(i) Parent~~ the Board of Trustees of ProLogis shall use ~~commercially~~ its reasonable best efforts to ~~solicit and secure~~ obtain from the shareholders of ProLogis the ProLogis Required ~~Parent Vote~~ Vote. ProLogis covenants that, unless a Change of ProLogis Recommendation has occurred in accordance with ~~applicable legal requirements and (ii) the Special Committee and~~ Section 5.4, ProLogis will, through its Board of ~~Directors~~ Trustees, recommend to its shareholders approval of ~~Parent shall include~~ the ~~Parent Recommendation in~~ Mergers and further covenants that the Joint Proxy Statement/~~Prospectus~~Prospectus and the Form S-4 will include such recommendation. ~~Company and Parent~~ Notwithstanding the foregoing provisions of this Section 5.1(c), if, on a date for which the ProLogis Shareholders Meeting is scheduled, ProLogis has not received proxies representing a sufficient number of ProLogis Common Shares to obtain the ProLogis Required Vote, whether or not a quorum is present, ProLogis shall ~~each~~ have the right to make one or more successive postponements or adjournments of the ProLogis Shareholders Meeting; provided that the ProLogis Shareholders Meeting is not postponed or adjourned to a date that is more than 30 days after the date for which the ProLogis Shareholders Meeting was originally scheduled (excluding any adjournments or postponements required by applicable Law). Nothing contained in this Agreement shall be deemed to relieve ProLogis of its obligation to submit the Mergers to its shareholders for a vote on the approval thereof. ProLogis agrees that, unless this Agreement shall have been terminated in accordance with Section 7.1, its obligations to hold the ProLogis Shareholders Meeting pursuant to this Section 5.1(c) shall not be affected by the commencement, public proposal, public disclosure or communication to ProLogis of any Acquisition Proposal or by any Change in ProLogis Recommendation. (d) Each of the parties hereto shall use their ~~commercially~~ reasonable best efforts to cause the ~~Company~~ AMB Stockholders Meeting and the ~~Parent Stockholders~~ ProLogis Shareholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 2 contracts

Samples: Merger Agreement (Amb Property Lp), Merger Agreement (Prologis)

Preparation of Proxy Statement; Stockholders Meetings. As (a) Parent and the Company shall cooperate in preparing, and as promptly as reasonably practicable (but no later than thirty-five (35) days) following the date hereof, ~~Parent and Company shall cooperate in preparing and each shall cause to be filed with~~ file the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/~~Prospectus”),~~ Prospectus and ~~Parent shall prepare, together with~~ Form S-4. The Proxy Statement/Prospectus will be included in and will constitute a part of the Form S-4. The Company will cause the Proxy Statement/Prospectus to be mailed to the Company~~, and file with~~ ’s stockholders as soon as reasonably practicable after the ~~SEC a registration statement on~~ Form S-4 (is declared effective under the Securities Act. Subject to Sections 5.3(d) and 5.3(e) and the other applicable terms of ~~which~~ this Agreement, the ~~Joint~~ Proxy Statement/Prospectus shall ~~be a part)~~ reflect the Company Board Recommendation and also include, in their entirety, the Fairness Opinions, together with ~~respect to the issuance of~~ summaries thereof. Parent ~~Common Stock in the Merger (such Form S-4~~shall use reasonable best efforts, and ~~any amendments or supplements thereto~~the Company shall cooperate with Parent, ~~the “Form S-4”). Each of Parent and Company shall: use commercially reasonable efforts~~ to have ~~the Joint Proxy Statement/cleared by the SEC and~~ the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective ~~as long as is necessary~~ through the Closing in order to consummate the Merger and the ~~other~~ transactions contemplated hereby. Parent shall also take any action required to be taken under any applicable state securities laws in connection with the issuance and reservation of Parent Shares in the Merger, and ~~to mail~~ the ~~Joint Proxy Statement/Prospectus to their respective stockholders~~ Company shall furnish all information concerning the Company and the holders of Company Shares, or holders of a beneficial interest therein, as ~~promptly as practicable after~~ may be reasonably requested in connection with any such action. Each of Parent or the ~~Form S-4 is declared effective. Parent and~~ Company shall, as promptly as practicable after receipt thereof, provide the other ~~party~~ parties with copies of any written ~~comments~~ comments, and advise ~~the~~ each other ~~party~~ of any oral ~~comments~~ comments, with respect to the ~~Joint~~ Proxy Statement/Prospectus or Form S-4 received from the SEC; . Parent and the Company shall cooperate and provide ~~the~~ each other ~~party~~ with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint~~ Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and ~~each party will provide~~ shall give reasonable and good faith consideration to any comments thereon made by the other party or its counsel, and will provide each other with a copy of all such filings made with the SEC. ~~None of~~ Subject to Section 5.3(g), but notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will, at~~ or the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party Form S-4 shall be ~~responsible or liable for any statements~~ made ~~or incorporated by reference therein based on information supplied by~~ without providing the other party ~~for inclusion~~ a reasonable opportunity to review and comment thereon and without the parties consulting and cooperating with one another, and considering in good faith the view of one another in doing so (provided, that, without limiting the foregoing, no amendment or ~~incorporation by reference therein; cause~~ supplement to the ~~Joint~~ Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty Prospectus shall be made ~~by either such party with respect to statements made~~ without the approval of both the Company and Parent, which approval shall not be unreasonably withheld, conditioned or ~~incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4~~delayed). Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; advise the other partyIf, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/or the Form S-4; and promptly notify the other party if at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of~~ Parent or the ~~parties~~Company, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Parent or the Company and such information should be set forth in an amendment or supplement to any of the Form S-4 or the ~~Joint~~ Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of the Company ~~and Parent.~~ in accordance with applicable Law. (b) The Company shall duly take all lawful action to call, give notice of, convene and hold ~~a meeting of its stockholders~~ the Company Stockholders Meeting as ~~promptly~~ soon as ~~practicable, and in any event within 45 days,~~ practicable following the ~~date upon which~~ declaration of effectiveness of the Form S-4 ~~becomes effective (~~by the ~~“Company Stockholders Meeting”)~~ SEC for the purpose of obtaining the ~~Bye-Law Vote~~ Company Stockholder Approval. The record date for the Company Stockholders Meeting shall be determined by the Company with prior consultation with Parent; provided, that the Company shall not change the date of (or the record date for), postpone or adjourn the Company Stockholders Meeting without the consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), provided, however, that the Company shall (i) be entitled to postpone or adjourn the Company Stockholders Meeting on one or more occasions without the prior consent of Parent and (ii) shall postpone or adjourn the ~~Required~~ Company ~~Vote~~ Stockholders Meeting on one or more occasions if so requested by Parent, in each case, if, on the date for which the Company Stockholders Meeting is then scheduled, the Company has not received proxies representing a sufficient number of Company Shares to obtain the Company Stockholder Approval, whether or not a quorum is present. (c) The Company Board shall, except in the case of a Change of Board Recommendation made in accordance with the terms and conditions of this Agreement, recommend the adoption of this Agreement by the Company stockholders to the effect as set forth in Section 3.3, and, subject to Section 05.3, ~~(i) Company~~ shall use ~~commercially~~ reasonable best efforts to solicit ~~and secure~~ the ~~Bye-Law Vote and the Required~~ Company ~~Vote~~ Stockholder Approval. Notwithstanding any Change in Board Recommendation pursuant to Section 5.3, unless this Agreement is terminated in accordance with ~~applicable legal requirements and (ii)~~ its terms, this Agreement shall be submitted to the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its Company’s stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause at the Company Stockholders ~~Meeting~~ Meeting, and nothing contained herein shall be deemed to relieve the Company of such obligation. The Company shall, upon the reasonable request of Parent, during the last seven (7) Business Days prior to the date of the Company Stockholders Meeting, request its proxy solicitor to advise Parent ~~Stockholders Meeting~~ at least one (1) time each Business Day as to the aggregate tally of proxies received by the Company with respect to the Company Stockholder Approval. Without the prior written consent of Parent (which shall not be ~~held on the same date. Unless Parent’s Special Committee~~ unconditionally withheld, delayed or conditioned), and except as required by applicable Law or the ~~Board~~ rules and regulations of ~~Directors of Parent makes a Change of Parent Recommendation~~NASDAQ, ~~Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and~~ the adoption of ~~the Bye-Law Amendments and~~ this Agreement and the transactions contemplated ~~hereby,~~ hereby (including the Merger~~, in favor of any~~ ) shall be the only matter (other ~~matter intended~~ than procedural matters) that the Company shall propose to ~~facilitate~~ be acted on by the ~~timely consummation~~ stockholders of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company ~~or its subsidiaries (except for~~ at the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsStockholders Meeting.

Appears in 2 contracts

Samples: Merger Agreement (AV Homes, Inc.), Agreement and Plan of Merger (Taylor Morrison Home Corp)

Preparation of Proxy Statement; Stockholders Meetings. ~~As promptly as reasonably practicable following the date hereof, Parent~~ (a) Seagate and ~~Company~~ Maxtor shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which prepare the Joint Proxy Statement/Prospectus and the S-4 and shall ~~be a part~~promptly (and in any event within 21 days following the date on which Maxtor files with the SEC its Annual Report on Form 10-K for the fiscal year ended December 31, 2005) file the Joint Proxy Statement/Prospectus and the S-4 with ~~respect to~~ the ~~issuance of Parent Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “Form S-4”)~~SEC. Each of ~~Parent~~ Seagate and ~~Company shall:~~ Maxtor shall use ~~commercially reasonable~~ its best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC~~SEC as promptly as practicable, to keep the Form S-4 effective as long as is necessary to consummate the Merger and the other transactions contemplated hereby, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. ~~Parent~~ Seagate and ~~Company~~ Maxtor shall, upon request, furnish each other with all information concerning themselves, their Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Joint Proxy Statement/Prospectus, the S-4 or any other statement, filing, notice or application made by or on behalf of Seagate, Maxtor or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. Seagate and Maxtor shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . Each party shall cooperate and provide the other party with a reasonable opportunity to review and comment on any substantive correspondence (including responses to comments from the SEC), amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC~~. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the~~ . (Ab) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither Each party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Seagate Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to either of the parties, or their respective affiliates, officers or directors, ~~which~~ should be discovered by either party that should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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~~ misleading, the party that discovers such information shall promptly notify the other party and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Seagate and ~~Parent. Company~~ Maxtor. (c) Seagate shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the ~~Form~~ S-4 becomes effective (the “~~Company~~ Seagate Stockholders Meeting”) for the purpose of obtaining the ~~Bye-Law Vote~~ Seagate Stockholder Approval, and ~~the Required Company Vote and, subject to Section 0, (i) Company~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Bye-Law Vote and~~ approval of the ~~Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Seagate Share Issuance by such stockholders. The Board of Directors of ~~Company~~ Seagate shall ~~include~~ recommend approval of the ~~Bye-Law Recommendation~~ issuance of shares of Seagate Common Stock in the Merger by the stockholders of Seagate and shall (x) not withdraw, modify or qualify in any manner adverse to Maxtor such recommendation or (y) take any other action or make any other public statement in connection with the ~~Company Recommendation~~ Seagate Stockholders Meeting inconsistent with such recommendation (collectively, a “Change in Seagate Recommendation”); provided that the foregoing shall not prohibit accurate disclosure (and such disclosure shall not be deemed to be a Change in Seagate Recommendation) of factual information regarding the business, financial condition or results of operations of Seagate or Maxtor (provided that the Board of Directors of Seagate does not withdraw, modify or qualify in any manner adverse to Maxtor its recommendation) in the S-4 or the Joint Proxy Statement/Prospectus~~. Parent~~ . (d) Maxtor shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the ~~Form~~ S-4 becomes effective (the “~~Parent~~ Maxtor Stockholders Meeting”) for the purpose of obtaining the ~~Required Parent Vote and, subject to Section 5.4, (i) Parent~~ Maxtor Stockholder Approval and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ adoption of this Agreement by such stockholders. The Board of Directors of ~~Parent~~ Maxtor shall ~~include~~ recommend adoption of this Agreement by the ~~Parent Recommendation~~ stockholders of Maxtor and shall not (x) withdraw, modify or qualify in any manner adverse to Seagate such recommendation or (y) take any other action or make any other public statement in connection with the Maxtor Stockholders Meeting inconsistent with such recommendation (collectively, a “Change in Maxtor Recommendation”); provided that the foregoing shall not prohibit accurate disclosure (and such disclosure shall not be deemed to be a Change in Maxtor Recommendation) of factual information regarding the business, financial condition or results of operations of Seagate or Maxtor or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal (provided that the Board of Directors of Maxtor does not withdraw, modify or qualify in any manner adverse to Seagate its recommendation) in the S-4 or the Joint Proxy Statement/Prospectus. ~~Company~~ Notwithstanding the foregoing, subject to and ~~Parent shall each use their commercially reasonable efforts to cause~~ in accordance with the ~~Company Stockholders Meeting~~ provisions of Section 7.8(b), Maxtor and ~~the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the~~ its Board of Directors ~~of Parent makes~~ shall be permitted to effect a Change in Maxtor Recommendation if and only to the extent that Maxtor’s Board of ~~Parent Recommendation~~Directors, ~~Parent shall~~after consultation with its outside counsel, ~~and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows:~~ determines in ~~favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended~~ good faith that failure to ~~facilitate the timely consummation of the Merger, against any~~ take such action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to ~~discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would~~ result in a ~~breach~~ violation of its fiduciary duties under applicable law. Notwithstanding any Change in ~~any material respect~~ Maxtor Recommendation this Agreement shall be submitted to the stockholders of ~~any covenant, representation or warranty or any other obligation~~ Maxtor at the Maxtor Stockholders Meeting for the purpose of ~~Company under~~ adopting this ~~Agreement~~Agreement and nothing contained herein shall be deemed to relieve Maxtor of such obligation. In ~~furtherance of~~ addition to the ~~foregoing, Parent~~ foregoing Maxtor shall ~~not, and shall cause its subsidiaries~~ not submit to ~~(A) deposit any~~ the vote of its ~~Company Common Shares in a Voting trust or subject~~ stockholders any ~~of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares~~ Acquisition Proposal other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsthe Merger.

Appears in 2 contracts

Samples: Merger Agreement (Maxtor Corp), Merger Agreement (Seagate Technology)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ PNU and ~~Company~~ Monsanto shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC ~~mutually acceptable~~ proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Monsanto shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 ~~(of which the Joint Proxy Statement/Prospectus shall be a part)~~ with respect to the issuance of ~~Parent~~ Monsanto Common Stock and Monsanto Convertible Preferred Stock in the Merger (~~such~~ the "Form S-4~~, and any amendments or supplements thereto, the “Form S-4”~~"). ~~Each of Parent and Company shall: use commercially reasonable efforts to have the~~ The Joint Proxy Statement/~~cleared by~~ Prospectus will be included in and will constitute a part of the ~~SEC~~ Form S-4 as Monsanto's prospectus. Each of PNU and Monsanto shall use reasonable best efforts to have the Form S-4 declared effective by the ~~SEC,~~ SEC as promptly as reasonably practicable after filing with the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. PNU and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Monsanto shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . Monsanto shall provide ~~the other party~~ PNU with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint Proxy Statement/and the~~ Form S-4 prior to filing such with the SEC, and ~~each party will provide the other party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will, at~~ or the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party Form S-4 shall be ~~responsible~~ made without the approval of both parties, which approval shall not be unreasonably withheld or ~~liable for any statements made or~~ delayed; provided, that with respect to documents filed by a party which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. PNU will use reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~PNU stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ Monsanto will use reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to Monsanto's stockholders, in each case as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities ~~Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to~~ Act. Monsanto shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Share Issuance and ~~each party~~ PNU shall furnish all information concerning it PNU and the holders of ~~its capital stock~~ PNU Common Stock and PNU Convertible Preferred Stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Monsanto Common Stock or the Monsanto Convertible Preferred Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~PNU or Monsanto, or any of their respective affiliates, officers or directors, should be discovered by PNU or Monsanto which should be set forth in an amendment or supplement to any of the ~~Form S-4 or~~ Form (b) Subject to Section 5.5, Monsanto shall, as promptly as reasonably practicable following the ~~Joint Proxy Statement/Prospectus so that such documents would not include any misstatement~~ execution of ~~a material fact or omit to state any material fact necessary to make the statements therein~~this Agreement, in light of the circumstances under which they were made, not misleading and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of Company and Parent. Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ (the ~~“Company~~ "Monsanto Stockholders Meeting”") (which meeting the parties intend to be held no later than May 15, 2000 or as soon as practicable thereafter) for the purpose of obtaining the ~~Bye-Law Vote~~ Required Monsanto Votes with respect to the Share Issuance and the ~~Required Company Vote and~~Charter Amendment, ~~subject to Section 0, (i) Company~~ and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Bye-Law Vote~~ approval of the Share Issuance and the Charter Amendment by the Required ~~Company Vote in accordance with applicable legal requirements~~ Monsanto Votes; and ~~(ii)~~ the ~~Special Committee and~~ Board of Directors of ~~Company shall include~~ Monsanto shall, subject to its fiduciary duties under applicable law, recommend approval of the ~~Bye-Law Recommendation~~ Share Issuance and the ~~Company Recommendation~~ Charter Amendment by the stockholders of Monsanto to the effect as set forth in Section 3.2(f), and shall not, subject to its fiduciary duties under applicable law, withdraw, modify or materially qualify in any manner adverse to PNU such recommendation or take any action or make any statement in connection with the Monsanto Stockholders Meeting materially inconsistent with such recommendation (any such withdrawal, modification, qualification or statement (whether or not required), an "Adverse Change in the ~~Joint Proxy Statement/Prospectus. Parent shall~~ Monsanto Recommendation"). (c) Subject to Section 5.5, PNU shall, as promptly as reasonably practicable following the execution of this Agreement, duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ (the ~~“Parent~~ "PNU Stockholders Meeting”") (which meeting the parties intend to be held no later than May 15, 2000 or as soon as practicable thereafter) for the purpose of obtaining the Required ~~Parent~~ PNU Vote ~~and~~with respect to the transactions contemplated by this Agreement, ~~subject to Section 5.4, (i) Parent~~ and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the adoption of this Agreement by the Required ~~Parent Vote in accordance with applicable legal requirements~~ PNU Vote; and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of ~~Parent makes a Change~~ PNU shall, subject to its fiduciary duties under applicable law, recommend adoption of ~~Parent Recommendation, Parent shall~~this Agreement by the stockholders of PNU to the effect as set forth in Section 3.1(f), and shall ~~cause~~ not, subject to its ~~subsidiaries to~~fiduciary duties under applicable law, ~~Vote all Company Common Shares held by it~~ withdraw, modify or ~~its subsidiaries as follows:~~ materially qualify in ~~favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of~~ any ~~other matter intended~~ manner adverse to ~~facilitate the timely consummation of the Merger, against~~ Monsanto such recommendation or take any action or ~~agreement~~ make any statement in connection with the PNU Stockholders Meeting materially inconsistent with such recommendation (~~including~~ any ~~merger~~such withdrawal, ~~amalgamation~~modification, ~~consolidation~~qualification or statement (whether of not required), ~~business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for~~ an "Adverse Change in the ~~Merger~~PNU Recommendation")) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 2 contracts

Samples: Merger Agreement (Monsanto Co), Merger Agreement (Pharmacia & Upjohn Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Kerr-McGee and ~~Company~~ Oryx shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC ~~mutually acceptable~~ proxy materials which shall ~~constitute the~~ conxxxxxxx xxe Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Kerr-McGee shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 with respect to xxx xxxxxxce of Company Common Stock in the Merger (the "Form S-4"). The Joint Proxy Statement/Prospectus will be included in and will constitute a part of ~~which~~ the Form S-4 as Kerr-McGee's prospectus. The Form S-4 and the Joint Proxy Statement/Prospectus shall ~~be a part)~~ cxxxxx xx xx form in all material respects with ~~respect to~~ the ~~issuance~~ applicable provisions of ~~Parent Common Stock in~~ the ~~Merger (such Form S-4,~~ Securities Act and ~~any amendments or supplements thereto,~~ the ~~“Form S-4”)~~Exchange Act and the rules and regulations thereunder. Each of ~~Parent~~ Kerr-McGee and ~~Company shall:~~ Oryx shall use ~~commercially~~ reasonable best efforts to have the ~~Joint Proxy Statement/cleared by~~ Form S-4 declared effxxxxxx xx the SEC as promptly as reasonably practicable after filing with the SEC and ~~the Form S-4 declared effective by the SEC,~~ to keep the Form S-4 effective as long as is necessary to consummate the Merger and the other transactions contemplated hereby, . Kerr-McGee and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Oryx shall, as promptly as practicable after receipt thereof, provide ~~the other party with~~ thx xxxxx xxrty copies of any written ~~comments~~ comments, and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . Kerr-McGee will provide ~~the other party~~ Oryx with a reasonable opportunity to review and comment on any ~~amendment~~ xxxxxxxxx or supplement to ~~the Joint Proxy Statement/and~~ the Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the other party~~ Oryx with a copy of all such filings made with the SEC. ~~None~~ Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Joint Proxy Statement/Prospectus or the Form S-4 shall be made without the approval of ~~the information supplied~~ both parties, which approval shall not be unreasonably withheld or delayed; provided, that with respect to ~~be supplied~~ documents filed by ~~Company or Parent for inclusion or incorporation~~ a party which are incorporated by reference in the ~~(A)~~ Form S-4 ~~will~~or Joint Proxy Statement/Prospectus, at this right of approval shall apply only with respect to information relating to the ~~time~~ other party or its business, financial condition or results of operations, or this Agreement, the Stock Option Agreements or the transactions contemplated hereby or thereby. Kerr-McGee will use reasonable best efforts to cause the Joint Proxy Statements/Prospecxxx xx xx mailed to Kerr-McGee stockholders, and Oryx will use reasonable best efforts to cause the Joint Pxxxx Xxxxxment/Prospectus to be mailed to Oryx's stockholders, in each case as promptly as practicable after the Form S-4 is ~~filed with the SEC and at the time it becomes~~ declared effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party . Kerr-McGee shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to also take any action (other than qualifying to do business in any jurixxxxxxxx xn which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the issuance of shares of Company Common Stock in the Merger and ~~each party~~ Oryx shall furnish all information concerning it Oryx and the holders of ~~its capital stock~~ Oryx Common Stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Company Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~Kerr-McGee or Oryx, or any of their respective affiliates, officers or directors, shoulx xx xxxxxvered by Kerr- McGee or Oryx which should be set forth in an amendment or supplement to any of ~~the Form S-4~~ txx Xxxx X-0 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, ~~rules~~ rule or ~~regulations~~regulation, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Kerr-McGee and ~~Parent. Company shall~~ Oryx. (b) Oryx shall, as promptly as reasxxxxxx xxxcticable following the execution of this Agreement, duly ~~take all lawful action to~~ call, give notice of, convene and hold a meeting of its stockholders (the "Oryx Stockholders Meeting") (which meeting the parties intend to be held on the same date as ~~promptly as practicable,~~ the Kerr-McGee Stockholders Meeting and ~~in any event within~~ which shall be held no later than 45 ~~days,~~ days following ~~the date upon which~~ xxx xxxxxration of effectiveness of the Form ~~S-4 becomes effective (the “Company Stockholders Meeting”~~S-4) for the purpose of obtaining the ~~Bye-Law~~ Required Oryx Vote with respect to this Agreement and the ~~Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote~~ Reverse Split and the ~~Required Company Vote in accordance with applicable legal requirements~~ Merger (which Oryx shall seek to present as a single, unitary proposal) and ~~(ii) the Special Committee and Board of Directors of Company~~ shall ~~include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly~~ take all lawful action to solicit the adoption of this Agreement and approval of the Reverse Split by the Required Oryx Vote. Unless otherwise required by their fiduciary duties, the Board of Directors of Oryx shall (i) recommend adoption of this Agreement and approval of the Reverse Split by the stockholders of Oryx to the effect as set forth in Section 3.2(f), and (ii) not withdraw, modify or materially qualify in any manner adverse to Kerr-McGee such recommendation or take any action or make any statement in connection wxxx xxx Xxyx Stockholders Meeting materially inconsistent with such recommendation (collectively, an "Adverse Change in the Oryx Recommendation"); provided the foregoing shall not prohibit accurate disclosure of factual information regarding the business, financial condition or results of operations of Kerr-McGee or Oryx or the fact that an Acquisition Proposal (as defined in Section 5.4) xxx xxxx made, the identity of the party making such proposal or the material terms of such proposal to the extent that Oryx determines that such disclosure is required under applicable law (and no such disclosure shall constitute an "Adverse Change in the Oryx Recommendation" hereunder). Unless this Agreement is terminated, Oryx shall be required to take the actions specified in the first sentence of this Section 5.1(b) whether or not the Oryx Board of Directors makes an Adverse Change in the Oryx Recommendation after the date hereof. (c) Kerr-McGee shall, as promptly as reasonably practicable following the execution of this Xxxxxxxxx, duly call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable,~~ (the "Kerr-McGee Stockholders Meeting") (which meeting the parties intend to be held on the sxxx xxxx xs the Oryx Stockholders Meeting and ~~in any event within~~ which shall be held no later than 45 ~~days,~~ days following the ~~date upon which~~ declaration of effectiveness of the Form ~~S-4 becomes effective (the “Parent Stockholders Meeting”~~S-4) for the purpose of obtaining the Required ~~Parent~~ Kerr-McGee Vote ~~and, subject~~ with respect to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the ~~transactions contemplated hereby,~~ Merger (including the ~~Merger, in favor of any other matter intended~~ issuance ox Xxxxxxx Common Stock pursuant to ~~facilitate the timely consummation of~~ the Merger) and shall take all lawful action to solicit the adoption of this Agreement by the Required Kerr-McGee Vote. Unless otherwise required by their fiduciary duties, ~~against~~ the Board of Dirxxxxxx xx Kerr-McGee shall (i) recommend adoption of this Agreement by the stockholders of Kerr- McGee to the effect as set forth in Xxxxxxx 0.0(x), xxx (xx) xxx xxxxxxxx, xxxxxx xx xxxxxxxlly qualify in any manner adverse to Oryx such recommendation or take any action or ~~agreement~~ make any statement in connection with the Kerr-McGee Stockholders Meeting materially inconsistent with such recommendation (~~including any merger~~collexxxxxxx, ~~amalgamation~~xn "Adverse Change in the Kerr-McGee Recommendation"); provided the foregoing shall not prohibit accurate disclosxxx xx xxxtual information regarding the business, ~~consolidation~~financial condition or results of operations of Kerr-McGee or Oryx or the fact that an Acquisition Proposal has been made, ~~business combination~~the identity xx xxx xxrty making such proposal or the material terms of such proposal to the extent that Kerr-McGee determines that such disclosure is required under applicable law (and no sucx xxxxxxxxre shall constitute an "Adverse Change in the Kerr-McGee Recommendation" hereunder). Unless this Agreement is terminated, ~~reorganization, recapitalization, liquidation~~ Kerr-McGee xxxxx xx required to take the actions specified in the first sentence of thix Xxxxxxx 5.1(c) whether or ~~sale~~ not the Kerr-McGee Board of Directors makes an Adverse Change in the Kerr-McGee Recommendation xxxxx xxx date hereof. (d) Notxxxx xx xxis Section 5.1 shall permit Kerr-McGee or ~~transfer of any material assets of Company~~ Oryx to terminate this Agreement or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or affect any other obligation of ~~Company~~ Kerr-MxXxx xx Xxyx under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 2 contracts

Samples: Merger Agreement (Kerr McGee Corp), Merger Agreement (Kerr McGee Corp)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ BBCN and ~~Company~~ WIBC shall cooperate in preparing ~~and each shall cause to be filed with the SEC~~ mutually acceptable proxy materials which shall constitute the joint proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company~~ WIBC stockholders at the ~~Company~~ WIBC Stockholders Meeting and to the ~~Parent~~ BBCN stockholders at the ~~Parent~~ BBCN Stockholders Meeting (such joint proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and ~~Parent~~ WIBC and BBCN shall ~~prepare, together with Company,~~ prepare and BBCN shall file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) in form and substance reasonably satisfactory to WIBC with respect to the issuance of ~~Parent~~ BBCN Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). Each of ~~Parent~~ BBCN and ~~Company shall:~~ WIBC shall use commercially reasonable efforts to file the initial, preliminary Joint Proxy Statement/Prospectus with the SEC as promptly as reasonably practicable (and in any event within 45 days) following the date hereof. Each of BBCN and WIBC shall use commercially reasonable efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC as promptly as is reasonably practicable following the initial filing and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. BBCN and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ WIBC shall, as promptly as practicable after receipt thereof, provide the other ~~party~~ Party with copies of any written comments and advise the other ~~party~~ Party of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . Each Party shall cooperate and provide the other ~~party~~ Party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each ~~party will~~ Party shall provide the other ~~party~~ Party with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party BBCN shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use its commercially reasonable efforts to take any action required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the Merger and each ~~party~~ Party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . BBCN shall advise ~~the other party~~WIBC, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ BBCN Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to either of the ~~parties~~Parties, or their respective affiliates, officers or directors, should be discovered by either Party which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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~~ misleading, the Party which discovers such information shall promptly notify the other Party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ WIBC and ~~Parent. Company~~ BBCN. (b) WIBC shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable,~~ practicable (and in any event within 45 days, ) following the date upon which the Form S-4 becomes effective (the “~~Company~~ WIBC Stockholders Meeting”) for the purpose of obtaining the ~~Bye-Law Vote and the~~ Required ~~Company Vote and, subject to Section 0, (i) Company~~ WIBC Vote. The WIBC Board shall use its commercially reasonable efforts to ~~solicit and secure~~ obtain from the ~~Bye-Law Vote and~~ WIBC stockholders the Required ~~Company Vote~~ WIBC Vote; provided, however, that the foregoing covenant shall not be deemed to limit the right of the WIBC Board to make a Change in Recommendation in compliance with Section 6.1(g). Unless this Agreement has been terminated in accordance with ~~applicable legal requirements and (ii)~~ Section 8.1, nothing contained in this Agreement shall be deemed to relieve WIBC of its obligation to submit this Agreement to its stockholders for a vote on the ~~Special Committee and Board~~ approval of ~~Directors~~ the principal terms of ~~Company shall include~~ the ~~Bye-Law Recommendation and the Company Recommendation in~~ Merger. Subject to Section 6.1(g), the Joint Proxy Statement/~~Prospectus. Parent~~ Prospectus shall include the recommendation of the WIBC Board that the stockholders of WIBC vote to approve the principal terms of the Merger (such recommendation being referred to herein as the “WIBC Board Recommendation”). (c) BBCN shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable,~~ practicable (and in any event within 45 days, ) following the date upon which the Form S-4 becomes effective (the “~~Parent~~ BBCN Stockholders Meeting”) for the purpose of obtaining the Required ~~Parent Vote and, subject to Section 5.4, (i) Parent~~ BBCN Vote. The BBCN Board shall use its commercially reasonable efforts to ~~solicit and secure~~ obtain from the BBCN stockholders the Required ~~Parent Vote~~ BBCN Vote; provided, however, that the foregoing covenant shall not be deemed to limit the right of the BBCN Board to make a Change in Recommendation in compliance with Section 6.1(g). Unless this Agreement has been terminated in accordance with ~~applicable legal requirements and (ii)~~ Section 8.1, nothing contained in this Agreement shall be deemed to relieve BBCN of its obligation to submit this Agreement to its stockholders for a vote on the ~~Special Committee and Board of Directors of Parent shall include the Parent Recommendation in~~ adoption thereof. Subject to Section 6.1(g), the Joint Proxy Statement/~~Prospectus. Company~~ Prospectus shall include the recommendation of the BBCN Board that the stockholders of BBCN vote to approve and ~~Parent~~ adopt this Agreement (such recommendation being referred to herein as the “BBCN Board Recommendation” and, together with the WIBC Board Recommendation, the “Board Recommendations”). (d) Notwithstanding anything to the contrary contained in this Agreement, each Party may and, upon the written request of the other Party, shall, adjourn or postpone such Party’s Stockholders Meeting (i) if as of the time for which such Stockholders Meeting is originally scheduled (i) there are insufficient shares of such Party’s Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Stockholders Meeting or (ii) there are insufficient votes of holders to such Party’s Common Stock necessary to approve the principal terms of the Merger by the Required WIBC Vote (in the case of WIBC) or to approve the Adoption, the BBCN Charter Amendment and the Share Issuance by the Required BBCN Vote (in the case of BBCN); provided that nothing herein shall prevent a Party from adjourning its Stockholders Meeting to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Board of Directors of such Party has determined in good faith after consultation with outside counsel is necessary under applicable law and for such supplemental or amended disclosure to be disseminated and reviewed by such Party’s stockholders prior to such Party’s Stockholders Meeting. (e) WIBC and BBCN shall each use their commercially reasonable efforts to cause the ~~Company~~ WIBC Stockholders Meeting and the ~~Parent~~ BBCN Stockholders Meeting to be held on the same date~~. Unless Parent’s Special Committee~~ . (f) Subject to Section 6.1(g), neither the WIBC Board or the BBCN Board nor any committee of ~~Directors~~ either thereof shall: (i) withdraw, modify or qualify its Board Recommendation in a manner adverse to the other Party, or adopt a resolution to withdraw, modify or qualify its Board Recommendation in a manner adverse to the other Party or take any other action that is or becomes disclosed publicly and which can reasonably be interpreted as indicating that such board of ~~Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it~~ directors or ~~its subsidiaries as follows: in favor of approval and adoption of~~ any committee thereof does not support the ~~Bye-Law Amendments~~ Merger and this Agreement or does not believe that the Merger and this Agreement are in the best interests of its stockholders; (ii) fail to reaffirm, without qualification, its Board Recommendation or fail to state publicly, without qualification, that the Merger and this Agreement are in the best interests of its stockholders within five business days after the other Party requests in writing that such action be taken; (iii) fail to announce publicly within ten business days after a tender offer or exchange offer relating to the WIBC Common Stock (in the case of the WIBC Board) or the BBCN Common Stock (in the case of the BBCN Board), shall have been commenced, that it recommends rejection of such tender or exchange offer; (iv) fail to issue within 10 business days after an Acquisition Proposal is publicly announced with respect to WIBC (in the case of the WIBC Board) or BBCN (in the case of the BBCN Board) a press release announcing its opposition to such Acquisition Proposal; (v) approve, endorse or recommend any such Acquisition Proposal with respect to WIBC (in the case of the WIBC Board) or BBCN (in the case of the BBCN Board); or (vi) resolve to take any action described in clauses (i) through (v) of this sentence (each of the foregoing actions described in clauses (i) through (vi) of this sentence being referred to herein as a “Change in Recommendation”). (g) Notwithstanding anything to the contrary contained in Sections 6.1(b), 6.1(c) or 6.1(f), at any time prior to the approval of the principal terms of the Merger by the Required WIBC Vote (in the case of WIBC) or at any time prior to the approval of the Adoption, the BBCN Charter Amendment and the ~~transactions contemplated hereby~~Share Issuance by the Required BBCN Vote (in the case of BBCN), ~~including~~ the ~~Merger~~WIBC Board or the BBCN Board, as the case may be, may effect a Change in ~~favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement~~ Recommendation: (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)i) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to if: (A) ~~deposit any~~ after the date of ~~its Company Common Shares~~ this Agreement, an unsolicited, bona fide written offer to effect a transaction of the type referred to in the definition of the term Superior Proposal is made to WIBC or BBCN (such Party under such circumstances being referred to herein as a ~~Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company,~~ “Target Party”) and is not withdrawn; (B) ~~directly~~ such unsolicited, bona fide, written offer was not obtained or ~~indirectly transfer~~made as a direct or indirect result of a breach of, ~~sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares~~ or any ~~interest therein~~action inconsistent with, this Agreement; (C) ~~exercise~~ the Target Party has complied with its obligations to provide notices to the other Party of any ~~warrants held~~ Acquisition Proposal and other matters requiring notice under Section 6.4(a); (D) at least five business days prior to each meeting of the board of directors of a Target Party at which such board of directors shall consider and determine whether any such offer constitutes a Superior Proposal, the Target Party provides the other Party with a written notice specifying the date and time of such meeting, the reasons for holding such meeting, the terms and conditions of the offer that is the basis of the potential action by the board of directors of the Target Party (including a copy of any draft definitive agreement reflecting the offer) and the identity of the Person making the offer (it or being agreed that any change to the terms and conditions of such offer shall require a new notice and new five business day period); (E) the Target Party board of directors determines in good faith, after obtaining and taking into account the advice of a financial advisor of nationally recognized reputation and its ~~subsidiaries to purchase Company Common Shares~~outside legal counsel, that such offer constitutes a Superior Proposal; (F) the Target Party board of directors does not effect, or ~~transfer~~cause the Target Party to effect, ~~sell~~a Change in Recommendation at any time within five business days after the other Party receives written notice from the Target Party confirming that such board of directors has determined that such offer is a Superior Proposal and intends to effect a Change in Recommendation; (G) during such five business day period, ~~assign~~if requested by such other Party, ~~convey~~the Target Party engages in good faith negotiations with such other Party to amend this Agreement in such a manner that the offer that was determined to constitute a Superior Proposal no longer constitutes a Superior Proposal; (H) at the end of such five business day period, ~~offer~~such offer has not been withdrawn and continues to constitute a Superior Proposal (taking into account any changes to the terms of this Agreement proposed by the other Party as a result of the negotiations required by clause (G) or otherwise); and (I) the board of directors of the Target Party reasonably determines in good faith, ~~exchange~~after obtaining and taking into account the advice of its outside legal counsel that, ~~pledge~~ in light of such Superior Proposal, a Change in Recommendation is required in order for such board of directors to comply with its fiduciary duties to its stockholders under the Applicable Legal Requirements; or (ii) if: (A) a material development or ~~otherwise dispose~~ change in circumstances occurs (that is not related to an Acquisition Proposal or a potential Acquisition Proposal) or arises after the date of this Agreement that was neither known to WIBC or ~~encumber~~ BBCN or any of their respective executive officers, directors, advisors and representatives nor reasonably foreseeable by WIBC or BBCN or any of their respective executive officers, directors, advisors and representatives as of the date of this Agreement (such ~~warrants~~material development or change in such circumstances being referred to herein as an “Intervening Event”); (B) at least five (5) business days prior to each meeting of the WIBC Board or the BBCN Board at which such board of directors intends to consider whether such Intervening Event requires such board of directors to effect or cause WIBC (in the case of the WIBC Board) or BBCN (in the case of the BBCN Board) to effect, a Change in Recommendation, the Party whose board of directors is to meet for such purpose provides the other Party with a written notice specifying the date and time of such meeting and the reasons for holding such meeting, including a reasonably detailed explanation of the Intervening Event (it being agreed that any material change in such Intervening Event shall require a new notice and five business day period); (C) during such five business day period, if requested by the Party so notified, the Party whose board of directors is to meet for such purpose engages in good faith negotiations with the Party so notified to amend this Agreement in a manner that obviates the need to effect or cause a Change in Recommendation as a result of such Intervening Event; and (D) the board of directors that is considering whether to effect a Change in Recommendation reasonably determines in good faith, after obtaining and taking into account the advice of outside legal counsel, that, in light of such Intervening Event, a Change in Recommendation is required in order for such board of directors to comply with its fiduciary duties to its stockholders under Applicable Legal Requirements.

Appears in 2 contracts

Samples: Merger Agreement (Wilshire Bancorp Inc), Merger Agreement (BBCN Bancorp Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) (i) As ~~promptly~~ soon as ~~reasonably~~ practicable following the date ~~hereof~~of this Agreement, ~~Parent~~ Parent, Merger Co. and Company shall cooperate in preparing and ~~each~~ shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of~~ Company stockholders at the Company Stockholders Meeting (as defined in Section 5.1(b)) and to the Parent stockholders at the Parent Stockholders Meeting (as defined in Section 5.1(c)) (such joint proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”). As soon as practicable following the date of this Agreement, ~~and~~ Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the issuance of Parent Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). . (ii) Each of Parent and Company ~~shall:~~ shall use commercially reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the SEC, to keep the Form S-4 effective as long as is necessary to consummate the Merger and the other transactions contemplated hereby, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . Each party shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. . (iii) None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements ~~therein, in light of the circumstances under which they were made,~~ therein not misleading, and the (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the . The Joint Proxy Statement/~~and the Form S-4 to~~ Prospectus will comply as to form in all material respects with the requirements of the Exchange Act ~~and the Securities Act, as the case may be,~~ and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/Prospectus or Form S-4. . (iv) Company and Parent ~~and Company~~ shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; . Parent shall use its commercially reasonable best efforts to take any action required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . (v) Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to either of the parties, or their respective affiliates, officers or directors, should be discovered by either party which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of Company and Parent. . (vi) Except as otherwise set forth in this Agreement, no amendment or supplement (including by incorporation by reference) to the Joint Proxy Statement/Prospectus or the Form S-4 shall be made without the approval of Company and Parent, which approval shall ~~duly take all lawful action~~ not be unreasonably withheld or delayed; provided that Company, in connection with a Change in Company Recommendation, and Parent, in connection with a Change in Parent Recommendation, may amend or supplement the proxy statement for Company, the proxy statement for Parent or the Form S-4 (including by incorporation by reference) pursuant to ~~call, give notice of, convene and hold~~ a ~~meeting of its stockholders as promptly as practicable~~Qualifying Amendment to effect or reflect such change, and in ~~any event within 45 days~~such event, ~~following~~ the ~~date upon which~~ right of approval set forth in this Section 5.1(a)(vi) shall not apply to such Qualifying Amendment; provided that the right of approval shall continue to apply with respect to such information relating to the other party or its business, financial condition or results of operations, subject to the right of each party to have its Board of Directors’ deliberations and conclusions be accurately described. A “Qualifying Amendment” means an amendment or supplement to the proxy statement for Company, the proxy statement for Parent or the Form S-4 ~~becomes effective~~ (including by incorporation by reference) which effects or reflects a Change in Company Recommendation or a Change in Parent Recommendation (as the “case may be); provided that any such amendment or supplement is limited to (A) a Change in Company ~~Stockholders Meeting”) for~~ Recommendation or a Change in Parent Recommendation (as the ~~purpose of obtaining the Bye-Law Vote and the Required Company Vote and, subject to Section 0~~case may be), (iB) ~~Company shall use commercially reasonable efforts to solicit and secure~~ a discussion of the ~~Bye-Law Vote and~~ reasons of the ~~Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Board of Directors of Company ~~shall include~~ or Parent (as the ~~Bye-Law Recommendation and the~~ case may be) for making such Change in Company Recommendation or Change in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in (as the ~~Joint Proxy Statement/Prospectus. Company~~ case may be) and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) ~~exercise any warrants held by it~~ background information regarding the Company Board of Directors’ or ~~its subsidiaries~~ Parent Board of Directors’ (as the case may be) deliberations and conclusions relating to ~~purchase~~ the Change in Company ~~Common Shares,~~ Recommendation or ~~transfer, sell, assign, convey, offer, exchange, pledge~~ Change in Parent Recommendation (as the case may be) or ~~otherwise dispose of or encumber such warrants~~other factual information reasonably related thereto.

Appears in 2 contracts

Samples: Merger Agreement (New Motion, Inc.), Merger Agreement (Traffix Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As ----------------------------------------------------- promptly as reasonably practicable following the date hereof, ~~Parent~~ Globespan and ~~Company~~ Virata shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials ~~which~~ that shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus and Globespan shall ~~be a part)~~ prepare and file with ~~respect to~~ the ~~issuance of Parent Common Stock in~~ SEC the ~~Merger (such~~ Form S-4, . The Joint Proxy Statement/Prospectus will be included as a prospectus in and ~~any amendments or supplements thereto,~~ will constitute a part of the “Form ~~S-4”)~~S-4 as Globespan's prospectus. Each of ~~Parent~~ Globespan and ~~Company shall:~~ Virata shall use ~~commercially~~ reasonable commercial efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby, . Each of Globespan and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Virata shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise ~~the~~ each other ~~party~~ of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both Globespan and Virata, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed -------- by a party ~~shall be responsible or liable for any statements made or~~ hereto that are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or its business, financial condition or results of operations; and provided, further, that Globespan, in connection -------- ------- with a Change in the Globespan Recommendation, and Virata, in connection with a Change in the Virata Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by ~~reference therein;~~ reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors' deliberations and conclusions to be accurately described. Globespan will use reasonable commercial efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~Globespan stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ Virata will use reasonable commercial efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to Virata stockholders, in each case, as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each Act. Each party ~~shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action;~~ hereto will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Globespan Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of the parties~~Globespan or Virata, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Globespan or Virata and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Globespan and ~~Parent. Company~~ Virata. (b) Virata shall duly take all lawful action to call, give notice of, convene and hold the Virata Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Globespan and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”)~~ Virata for the purpose of obtaining the ~~Bye-Law Vote and the Required Company Vote~~ Virata Stockholder Approval and, subject to Section 06.5, ~~(i) Company~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Virata Stockholder Approval. The Board of Directors of ~~Company~~ Virata shall ~~include~~ recommend the ~~Bye-Law~~ approval of the plan of merger contained in this Agreement by the stockholders of Virata to the effect as set forth in Section 4.1(p) (the "Virata Recommendation"), and shall --------------------- not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Globespan such recommendation or (ii) take any action or make any statement in connection with the Virata Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the Virata -------------------- Recommendation"); provided, however, that the Board of Directors of Virata may -------------- -------- ------- make a Change in the Virata Recommendation pursuant to Section 6.5 hereof. Notwithstanding any Change in the Virata Recommendation, this Agreement shall be submitted to the stockholders of Virata at the Virata Stockholders Meeting for the purpose of approving and adopting this Agreement and the ~~Company Recommendation in the Joint Proxy Statement/Prospectus. Parent~~ Merger and nothing contained herein shall be deemed to relieve Virata of such obligation. (c) Globespan shall duly take all lawful action to call, give notice of, convene and hold the Globespan Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Globespan and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”)~~ Virata for the purpose of obtaining the ~~Required Parent Vote~~ Globespan Stockholder Approval and, subject to Section ~~5.4~~6.5, ~~(i) Parent~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Globespan Stockholder Approval. The Board of Directors of ~~Parent~~ Globespan shall ~~include~~ recommend the ~~Parent Recommendation~~ approval of issuance of Globespan Common Stock in the ~~Joint Proxy Statement/Prospectus. Company~~ Merger by the stockholders of Globespan (the "Globespan Recommendation"), and ~~Parent~~ shall ~~each use their commercially reasonable efforts~~ not (i) withdraw, ------------------------ modify or qualify (or propose to ~~cause~~ withdraw, modify or qualify) in any manner adverse to Virata such recommendation or (ii) take any action or make any statement in connection with the ~~Company~~ Globespan Stockholders Meeting ~~and~~ inconsistent with such recommendation (collectively, a "Change in the ~~Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or~~ Globespan ----------------------- Recommendation"); provided, however, that the Board of Directors of ~~Parent makes~~ Globespan -------------- -------- ------- may make a Change ~~of Parent~~ in the Globespan Recommendation pursuant to Section 6.5 hereof. Notwithstanding any Change in the Globespan Recommendation, ~~Parent shall,~~ this Agreement shall be submitted to the stockholders of Globespan at the Globespan Stockholders Meeting for the purpose of approving and ~~shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and~~ adopting this Agreement and the ~~transactions contemplated hereby, including~~ Merger and the ~~Merger,~~ issuance of Globespan Common Stock in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger ~~or inhibit the timely consummation of the Merger, in each case, in any material respect,~~ and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent nothing contained herein shall ~~not, and shall cause its subsidiaries not~~ be deemed to ~~(A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting~~ relieve Globespan of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsobligation.

Appears in 2 contracts

Samples: Merger Agreement (Virata Corp), Agreement and Plan of Merger (Virata Corp)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, Parent and Company shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/~~Prospectus”),~~ Prospectus and Parent shall ~~prepare, together with Company,~~ prepare and file with the SEC ~~a registration statement on~~ the Form ~~S-4 (of which the~~ S-4. The Joint Proxy Statement/Prospectus ~~shall~~ will be included as a ~~part) with respect to~~ prospectus in and will constitute a part of the ~~issuance of Parent Common Stock in the Merger (such~~ Form ~~S-4, and any amendments or supplements thereto, the “Form S-4”)~~S-4 as Parent's prospectus. Each of Parent and Company ~~shall:~~ shall use commercially reasonable efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby~~, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective~~. Parent and Company shall, as promptly as practicable after receipt thereof, provide ~~the~~ each other ~~party~~ with copies of any written ~~comments~~ comments, and advise ~~the~~ each other ~~party~~ of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the ~~SEC;~~ SEC and consult with each other and jointly prepare written responses with respect to any such written comments. The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and shall provide each ~~party will provide the~~ other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both Parent and Company, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the transactions contemplated hereunder, the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. Parent shall use its reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~Parent stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty~~ Company shall ~~be made by either such party with respect~~ use its reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to Company stockholders, in each case, as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each Act. Each party shall ~~furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action;~~ advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any ~~jurisdiction,~~ jurisdiction or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of the parties~~Parent or Company, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Parent or Company and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party discovering such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Parent and ~~Parent.~~ Company. (b) Company shall duly take all lawful action to call, give notice of, convene and hold ~~a meeting~~ the Company Stockholders Meeting as soon as practicable following effectiveness of ~~its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which~~ the Form S-4 ~~becomes effective~~ under the Securities Act (on a date determined in accordance with the ~~“Company Stockholders Meeting”~~mutual agreement of Parent and Company) for the purpose of obtaining the ~~Bye-Law Vote~~ Company Stockholder Approval and shall take all lawful action to solicit the ~~Required~~ Company ~~Vote and, subject~~ Stockholder Approval. Subject to Section 07.4, (i) the Joint Proxy Statement/Prospectus shall include a statement to the effect that the Board of Directors of Company ~~shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote~~ and the ~~Required~~ Company ~~Vote in accordance with applicable legal requirements~~ Special Committee recommend that Company's stockholders vote to approve and adopt this Agreement and the Merger (the "Company Recommendation") and (ii) the ~~Special Committee~~ Company Recommendation shall not be withdrawn or modified in a manner adverse to Parent, and no resolution by the Board of Directors of the Company ~~shall include the Bye-Law Recommendation and~~ or any committee thereof to withdraw or modify the Company Recommendation in ~~the Joint Proxy Statement/Prospectus.~~ a manner adverse to Parent shall be adopted or proposed. (c) Parent shall duly take all lawful action to call, give notice of, convene and hold ~~a meeting~~ the Parent Stockholders Meeting as soon as practicable following effectiveness of ~~its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which~~ the Form S-4 ~~becomes effective~~ under the Securities Act (on a date determined in accordance with the “mutual agreement of Parent ~~Stockholders Meeting”~~and Company) for the purpose of obtaining the ~~Required~~ Parent ~~Vote and, subject to Section 5.4, (i) Parent~~ Stockholder Approval and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include~~ the Parent ~~Recommendation in the~~ Stockholder Approval. The Joint Proxy Statement/~~Prospectus. Company and Parent~~ Prospectus shall ~~each use their commercially reasonable efforts~~ include a statement to ~~cause~~ the ~~Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or~~ effect that the Board of Directors of Parent ~~makes a Change of~~ and the Parent ~~Recommendation, Parent shall,~~ Special Committee recommend that Parent's stockholders vote to approve and ~~shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and~~ adopt this Agreement and the ~~transactions contemplated hereby, including the~~ Merger, and approve the issuance of Parent Common Stock in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger (the "Parent Recommendation"). The Parent Recommendation shall not be withdrawn or ~~inhibit~~ modified in a manner adverse to the ~~timely consummation of the Merger, in each case, in any material respect~~Company, and ~~against~~ no resolution by the Board of Directors of Parent or any ~~action~~ committee thereof to withdraw or ~~agreement that would result~~ modify the Parent Recommendation in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect manner adverse to the ~~Voting of such~~ Company ~~Common Shares other than agreements entered into with Company, (B) directly~~ shall be adopted or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsproposed.

Appears in 2 contracts

Samples: Merger Agreement (Bruker Daltonics Inc), Merger Agreement (Bruker Axs Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, Parent and Company shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the issuance of Parent Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). Each of Parent and Company shall: : (i) use commercially reasonable efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the SEC, to keep the Form S-4 effective as long as is necessary to consummate the Merger and the other transactions contemplated hereby, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; ; (ii) cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; ; (iii) cause the Joint Proxy Statement/Prospectus and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/Prospectus or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; ; (iv) use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; ; (v) advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4; ~~and~~ and (vi) promptly notify the other party if at any time prior to the Effective Time it discovers any information relating to either of the parties, or their respective affiliates, officers or directors, which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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 and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of Company and Parent. . (b) Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”) for the purpose of obtaining the Bye-Law Vote and the Required Company Vote and, subject to Section 05.4, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. . (c) Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. . (d) Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. . (e) Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: : (i) in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, , (ii) in favor of any other matter intended to facilitate the timely consummation of the Merger, , (iii) against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, ~~and~~ and (iv) against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 2 contracts

Samples: Merger Agreement (Tower Group, Inc.), Merger Agreement (Tower Group, Inc.)

Preparation of Proxy Statement; Stockholders Meetings. (i) As ~~promptly~~ soon as ~~reasonably~~ practicable following the date ~~hereof~~of this Agreement, ~~Parent~~ BDE and ~~Company~~ Atrinsic shall cooperate in preparing and ~~each~~ shall cause to be filed with the SEC ~~mutually acceptable~~ proxy materials which shall constitute the proxy ~~statement/prospectus~~ statement relating to the matters to be submitted to ~~the shareholders of Company at the Company Stockholders Meeting and to the Parent~~ Atrinsic stockholders at ~~the Parent Stockholders Meeting~~ its stockholder meeting (such ~~joint~~ proxy ~~statement/~~statement, and any amendments or supplements thereto, the “~~Joint~~ Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the issuance of Parent Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). ~~Each of Parent and Company shall:~~ Atrinsic shall use commercially reasonable best efforts to have the ~~Joint~~ Proxy ~~Statement/~~Statement cleared by the SEC and ~~the Form S-4 declared effective by the SEC, to keep the Form S-4 effective as long as is necessary to consummate the Merger and the other transactions contemplated hereby, and~~ to mail the ~~Joint~~ Proxy ~~Statement/Prospectus~~ Statement to ~~their respective~~ Atrinsic’s stockholders as promptly as practicable ~~after the Form S-4 is declared effective~~thereafter. ~~Parent and Company~~ Atrinsic shall, as promptly as practicable after receipt thereof, provide ~~the other party~~ BDE with copies of any written comments and advise ~~the other party~~ BDE of any oral comments with respect to the ~~Joint~~ Proxy ~~Statement/or Form S-4~~ Statement that pertain to the Business of BDE that are received from the SEC; . Atrinsic shall cooperate and provide ~~the other party~~ BDE with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint~~ Proxy ~~Statement/and~~ Statement that relates to the ~~Form S-4~~ Business of BDE prior to filing such with the SEC~~, and each party will provide the other party with a copy of all such filings made with the SEC.~~ . (A) None of the information supplied or to be supplied by ~~Company or Parent~~ BDE for inclusion or incorporation by reference in the (A) ~~Form S-4~~ Proxy Statement will, at the time the ~~Form S-4~~ Proxy Statement is filed with the ~~SEC and at the time it becomes effective under the Securities Act~~SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements ~~therein, in light of the circumstances under which they were made,~~ therein not misleading, and the (B) ~~Joint~~ Proxy ~~Statement/Prospectus~~ Statement will, at the date of mailing to Atrinsic stockholders and at the times of the meetings of stockholders to be held in connection with the ~~Merger~~transactions contemplated hereby, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint . The Proxy ~~Statement/and the Form S-4 to~~ Statement will comply as to form in all material respects with the requirements of the Exchange Act ~~and the Securities Act, as the case may be,~~ and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the ~~Joint~~ Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . (B) Atrinsic will advise ~~the other party~~BDE, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the ~~Joint~~ Proxy Statement~~/or the Form S-4; and promptly notify the other party if~~ . If at any time prior to the ~~Effective Time it discovers~~ Closing Date any information relating to either of the parties, or their respective affiliates, officers or directors, should be discovered by either party which should be set forth in an amendment or supplement to ~~any of~~ the ~~Form S-4 or the Joint~~ Proxy ~~Statement/Prospectus~~ Statement so that such ~~documents~~ document would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company and Parent. Company~~ Atrinsic. (C) Except as otherwise set forth in this Agreement, no amendment or supplement (including by incorporation by reference) to the Proxy Statement shall be made without prior notice to BDE. (ii) Atrinsic shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the ~~Form S-4 becomes effective~~ Proxy Statement is mailed to its stockholders (the “~~Company~~ Atrinsic Stockholders Meeting”) for the purpose of obtaining the ~~Bye-Law~~ Required Atrinsic Vote ~~and~~ with respect to the ~~Required Company Vote and, subject to Section 0,~~ issuance of the Share Consideration. (iiii) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent BDE shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the ~~Form S-4 becomes effective~~ Proxy Statement is mailed to the Atrinsic stockholders (the “~~Parent~~ BDE Stockholders Meeting” and, together with the Atrinsic Stockholders Meeting, the “Required Stockholders Meetings”) for the purpose of obtaining the Required ~~Parent~~ BDE Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held transactions contemplated by ~~it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants~~this Agreement.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Atrinsic, Inc.), Asset Purchase Agreement (Brilliant Digital Entertainment Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Xxxx-XxXxx and ~~Company~~ Oryx shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC ~~mutually acceptable~~ proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Xxxx-XxXxx shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 with respect to the issuance of Company Common Stock in the Merger (the "Form S-4"). The Joint Proxy Statement/Prospectus will be included in and will constitute a 45 part of ~~which~~ the Form S-4 as Xxxx-XxXxx'x prospectus. The Form S-4 and the Joint Proxy Statement/Prospectus shall ~~be a part)~~ comply as to form in all material respects with ~~respect to~~ the ~~issuance~~ applicable provisions of ~~Parent Common Stock in~~ the ~~Merger (such Form S-4,~~ Securities Act and ~~any amendments or supplements thereto,~~ the ~~“Form S-4”)~~Exchange Act and the rules and regulations thereunder. Each of ~~Parent~~ Xxxx-XxXxx and ~~Company shall:~~ Oryx shall use ~~commercially~~ reasonable best efforts to have ~~the Joint Proxy Statement/cleared by the SEC and~~ the Form S-4 declared effective by the ~~SEC,~~ SEC as promptly as reasonably practicable after filing with the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the other transactions contemplated hereby, . Xxxx-XxXxx and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Oryx shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written ~~comments~~ comments, and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . Xxxx-XxXxx will provide ~~the other party~~ Oryx with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint Proxy Statement/and the~~ Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the other party~~ Oryx with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will, at~~ or the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party Form S-4 shall be ~~responsible~~ made without the approval of both parties, which approval shall not be unreasonably withheld or ~~liable for any statements made or~~ delayed; provided, that with respect to documents filed by a party which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations, or this Agreement, the Stock Option Agreements or the transactions contemplated hereby or thereby. Xxxx-XxXxx will use reasonable best efforts to cause the Joint Proxy Statements/Prospectus to be mailed to Xxxx-XxXxx stockholders, and Oryx will use reasonable best efforts to cause the Joint Proxy Statement/~~and~~ Prospectus to be mailed to Oryx's stockholders, in each case as promptly as practicable after the Form S-4 ~~to comply as to form in all material respects with the requirements of the Exchange Act and~~ is declared effective under the Securities Act~~, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty~~ . Xxxx-XxXxx shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the issuance of shares of Company Common Stock in the Merger and ~~each party~~ Oryx shall furnish all information concerning it Oryx and the holders of ~~its capital stock~~ Oryx Common Stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Company Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~Xxxx-XxXxx or Oryx, or any of their respective affiliates, officers or directors, should be discovered by Xxxx-XxXxx or Oryx which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, ~~rules~~ rule or ~~regulations~~regulation, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Xxxx-XxXxx and ~~Parent. Company shall~~ Oryx. (b) Oryx shall, as promptly as reasonably practicable following the execution of this Agreement, duly ~~take all lawful action to~~ call, give notice of, convene and hold a meeting of its stockholders (the "Oryx Stockholders Meeting") (which meeting the parties intend to be held on the same date as ~~promptly as practicable,~~ the Xxxx-XxXxx Stockholders Meeting and ~~in any event within~~ which shall be held no later than 45 ~~days,~~ days following the ~~date upon which~~ declaration of effectiveness of the Form ~~S-4 becomes effective (the “Company Stockholders Meeting”~~S-4) for the purpose of obtaining the ~~Bye-Law~~ Required Oryx Vote with respect to this Agreement and the ~~Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote~~ Reverse Split and the ~~Required Company Vote in accordance with applicable legal requirements~~ Merger (which Oryx shall seek to present as a single, unitary proposal) and ~~(ii) the Special Committee and Board of Directors of Company~~ shall ~~include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly~~ take all lawful action to solicit the adoption of this Agreement and approval of the Reverse Split by the Required Oryx Vote. Unless otherwise required by their fiduciary duties, the Board of Directors of Oryx shall (i) recommend adoption of this Agreement and approval of the Reverse Split by the stockholders of Oryx to the effect as set forth in Section 3.2(f), and (ii) not withdraw, modify or materially qualify in any manner adverse to Xxxx-XxXxx such recommendation or take any action or make any statement in connection with the Oryx Stockholders Meeting materially inconsistent with such recommendation (collectively, an "Adverse Change in the Oryx Recommendation"); provided the foregoing shall not prohibit accurate disclosure of factual information regarding the business, financial condition or results of operations of Xxxx- XxXxx or Oryx or the fact that an Acquisition Proposal (as defined in Section 5.4) has been made, the identity of the party making such proposal or the material terms of such proposal to the extent that Oryx determines that such disclosure is required under applicable law (and no such disclosure shall constitute an "Adverse Change in the Oryx Recommendation" hereunder). Unless this Agreement is terminated, Oryx shall be required to take the actions specified in the first sentence of this Section 5.1(b) whether or not the Oryx Board of Directors makes an Adverse Change in the Oryx Recommendation after the date hereof. (c) Xxxx-XxXxx shall, as promptly as reasonably practicable following the execution of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Xxxx-XxXxx Stockholders Meeting") (which meeting the parties intend to be held on the same date as ~~promptly as practicable,~~ the Oryx Stockholders Meeting and ~~in any event within~~ which shall be held no later than 45 ~~days,~~ days following the ~~date upon which~~ declaration of effectiveness of the Form ~~S-4 becomes effective (the “Parent Stockholders Meeting”~~S-4) for the purpose of obtaining the Required ~~Parent~~ Xxxx-XxXxx Vote ~~and, subject~~ with respect to ~~Section 5.4,~~ this Agreement and the Merger (iincluding the issuance of Company Common Stock pursuant to the Merger) ~~Parent~~ and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the adoption of this Agreement by the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same dateXxxx-XxXxx Vote. Unless ~~Parent’s Special Committee or~~ otherwise required by their fiduciary duties, the Board of Directors of ~~Parent makes a Change~~ Xxxx-XxXxx shall (i) recommend adoption of ~~Parent Recommendation, Parent shall~~this Agreement by the stockholders of Xxxx- XxXxx to the effect as set forth in Section 3.1(f), and ~~shall cause its subsidiaries to~~(ii) not withdraw, ~~Vote all Company Common Shares held by it~~ modify or ~~its subsidiaries as follows:~~ materially qualify in ~~favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of~~ any ~~other matter intended~~ manner adverse to ~~facilitate the timely consummation of the Merger, against~~ Oryx such recommendation or take any action or ~~agreement~~ make any statement in connection with the Xxxx-XxXxx Stockholders Meeting materially inconsistent with such recommendation (~~including any merger~~collectively, ~~amalgamation~~an "Adverse Change in the Xxxx-XxXxx Recommendation"); provided the foregoing shall not prohibit accurate disclosure of factual information regarding the business, ~~consolidation~~financial condition or results of operations of Xxxx- XxXxx or Oryx or the fact that an Acquisition Proposal has been made, ~~business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for~~ the ~~Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation~~ identity of the ~~Merger~~party making such proposal or the material terms of such proposal to the extent that Xxxx-XxXxx determines that such disclosure is required under applicable law (and no such disclosure shall constitute an "Adverse Change in the Xxxx-XxXxx Recommendation" hereunder). Unless this Agreement is terminated, Xxxx-XxXxx shall be required to take the actions specified in ~~each case,~~ the first sentence of this Section 5.1(c) whether or not the Xxxx- XxXxx Board of Directors makes an Adverse Change in ~~any material respect, and against any action~~ the Xxxx-XxXxx Recommendation after the date hereof. (d) Nothing in this Section 5.1 shall permit Xxxx-XxXxx or ~~agreement that would result in a breach in any material respect of any covenant, representation~~ Oryx to terminate this Agreement or ~~warranty or~~ affect any other obligation of ~~Company~~ Xxxx-XxXxx or Oryx under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 2 contracts

Samples: Merger Agreement (Oryx Energy Co), Merger Agreement (Oryx Energy Co)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Nara and ~~Company~~ Center Financial shall cooperate in preparing ~~and each shall cause to be filed with the SEC~~ mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company~~ Center Financial stockholders at the ~~Company~~ Center Financial Stockholders Meeting and to the ~~Parent~~ Nara stockholders at the ~~Parent~~ Nara Stockholders Meeting (such joint proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and ~~Parent~~ Nara shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) in form and substance reasonably satisfactory to Center Financial with respect to the issuance of ~~Parent~~ Nara Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). Each of ~~Parent~~ Nara and ~~Company shall:~~ Center Financial shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC as promptly as is reasonably practicable and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. Nara and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Center Financial shall, as promptly as practicable after receipt thereof, provide the other ~~party~~ Party with copies of any written comments and advise the other ~~party~~ Party of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . Each Party shall cooperate and provide the other ~~party~~ Party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each ~~party~~ Party will provide the other ~~party~~ Party with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party Nara shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use ~~commercially~~ its reasonable best efforts to take any action required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the Merger and each ~~party~~ Party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . Nara will advise ~~the other party~~Center Financial, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Nara Common Stock and Nara Series B Preferred Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to either of the ~~parties~~Parties, or their respective affiliates, officers or directors, should be discovered by either Party which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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~~ misleading, the Party which discovers such information shall promptly notify the other Party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Center Financial and ~~Parent. Company~~ Nara. (b) Center Financial shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the “~~Company~~ Center Financial Stockholders Meeting”) for the purpose of obtaining the ~~Bye-Law Vote and~~ Required Center Financial Vote. The Center Financial Board shall use its reasonable best efforts to obtain from the Center Financial stockholders the Required ~~Company Vote and~~Center Financial Vote; provided, ~~subject~~ however, that the foregoing covenant shall not be deemed to limit the right of the Center Financial Board to make a Change in Recommendation in compliance with Section 5.1(f). Nothing contained in this Agreement shall be deemed to relieve Center Financial of its obligation to submit this Agreement to its stockholders for a vote on the approval of the principal terms of the Merger. Subject to Section 05.1(f), (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/~~Prospectus. Parent~~ Prospectus shall include the recommendation of the Center Financial Board that the stockholders of Center Financial vote to approve the principal terms of the Merger (such recommendation being referred to herein as the “Center Financial Board Recommendation”). (c) Nara shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the “~~Parent~~ Nara Stockholders Meeting”) for the purpose of obtaining the Required ~~Parent Vote and~~Nara Vote. The Nara Board shall use its reasonable best efforts to obtain from the Nara stockholders the Required Nara Vote; provided, ~~subject~~ however, that the foregoing covenant shall not be deemed to limit the right of the Nara Board to make a Change in Recommendation in compliance with Section 5.1(f). Nothing contained in this Agreement shall be deemed to relieve Nara of its obligation to submit this Agreement to its stockholders for a vote on the adoption thereof. Subject to Section ~~5.4~~5.1(f), (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/~~Prospectus. Company~~ Prospectus shall include the recommendation of the Nara Board that the stockholders of Nara vote to approve and ~~Parent~~ adopt this Agreement (such recommendation being referred to herein as the “Nara Board Recommendation” and, together with the Center Financial Board Recommendation, the “Board Recommendations”). (d) Center Financial and Nara shall each use their ~~commercially~~ reasonable best efforts to cause the ~~Company~~ Center Financial Stockholders Meeting and the ~~Parent~~ Nara Stockholders Meeting to be held on the same date~~. Unless Parent’s Special Committee~~ . (e) Subject to Section 5.1(f), neither the Center Financial Board or the Nara Board nor any committee of ~~Directors~~ either thereof shall: (i) withdraw, modify or qualify its Board Recommendation in a manner adverse to the other Party, or adopt or propose a resolution to withdraw, modify or qualify its Board Recommendation in a manner adverse to the other Party or take any other action that is or becomes disclosed publicly and which can reasonably be interpreted as indicating that such board of ~~Parent makes~~ directors or any committee thereof does not support the Merger and this Agreement or does not believe that the Merger and this Agreement are in the best interests of its stockholders; (ii) fail to reaffirm, without qualification, its Board Recommendation or fail to state publicly, without qualification, that the Merger and this Agreement are in the best interests of its stockholders within five business days after the other Party requests in writing that such action be taken; (iii) fail to announce publicly within ten business days after a tender offer or exchange offer relating to the Center Financial Common Stock (in the case of the Center Financial Board) or the Nara Common Stock (in the case of the Nara Board), shall have been commenced, that it recommends rejection of such tender or exchange offer; (iv) fail to issue within 10 business days after an Acquisition Proposal is publicly announced with respect to Center Financial (in the case of the Center Financial Board) or Nara (in the case of the Nara Board) a press release announcing its opposition to such Acquisition Proposal; (v) approve, endorse or recommend any such Acquisition Proposal with respect to Center Financial (in the case of the Center Financial Board) or Nara (in the case of the Nara Board) or (vi) resolve or propose to take any action described in clauses (i) through (v) of this sentence (each of the foregoing actions described in clauses (i) through (vi) of this sentence being referred to herein as a “Change in Recommendation”). (f) Notwithstanding anything to the contrary contained in Sections 5.1(b), 5.1(c) or 5.1(e), at any time prior to the approval of ~~Parent Recommendation, Parent shall, and shall cause its subsidiaries to,~~ the principal terms of the Merger by the Required Center Financial Vote ~~all Company Common Shares held by it~~ (in the case of Center Financial) or ~~its subsidiaries as follows: in favor of~~ at any time prior to the approval and adoption of ~~the Bye-Law Amendments and~~ this Agreement ~~and~~ by the ~~transactions contemplated hereby~~Required Nara Vote (in the case of Nara), ~~including~~ the ~~Merger~~Center Financial Board or the Nara Board, ~~in favor of any other matter intended to facilitate~~ as the ~~timely consummation of the Merger~~case may be, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete withmay effect, or ~~impede~~cause Center Financial or Nara, ~~or interfere with or that would reasonably be expected~~ respectively, to ~~discourage the Merger or inhibit the timely consummation of the Merger,~~ effect a Change in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to Recommendation: (i) if: (A) ~~deposit any~~ after the date of ~~its Company Common Shares~~ this Agreement, an unsolicited, bona fide written offer to effect a transaction of the type referred to in the definition of the term Superior Proposal is made to Center Financial or Nara (such Party under such circumstances being referred to herein as a ~~Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company,~~ “Target Party”) and is not withdrawn; (B) ~~directly~~ such unsolicited, bona fide, written offer was not obtained or ~~indirectly transfer~~made as a direct or indirect result of a breach of, ~~sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares~~ or any ~~interest therein~~action inconsistent with, this Agreement; (C) ~~exercise~~ the Target Party has materially complied with its obligations to provide notices to the other Party of any ~~warrants held~~ Acquisition Proposal and other matters requiring notice under Section 5.4(b)(ii); (D) at least five business days prior to each meeting of the board of directors of a Target Party, at which such board of directors will consider and determine whether any such offer constitutes a Superior Proposal, the Target Party provides the other Party with a written notice specifying the date and time of such meeting, the reasons for holding such meeting, the terms and conditions of the offer that is the basis of the potential action by the board of directors of the Target Party (including a copy of any draft definitive agreement reflecting the offer) and the identity of the Person making the offer (it or being agreed that any change to the terms and conditions of such offer shall require a new notice and five business day period); (E) such board of directors determines in good faith, after obtaining and taking into account the advice of a financial advisor of nationally recognized reputation and its ~~subsidiaries to purchase Company Common Shares~~outside legal counsel, that such offer constitutes a Superior Proposal; (F) such board of directors does not effect, or ~~transfer~~cause the Target Party to effect, ~~sell~~a Change in Recommendation at any time within five business days after the other Party receives written notice from the Target Party confirming that such board of directors has determined that such offer is a Superior Proposal and intends to effect a Change in Recommendation; (G) during such five business day period, ~~assign~~if requested by such other Party, ~~convey~~the Target Party engages in good faith negotiations with such other Party to amend this Agreement in such a manner that the offer that was determined to constitute a Superior Proposal no longer constitutes a Superior Proposal; (H) at the end of such five business day period, ~~offer~~such offer has not been withdrawn and continues to constitute a Superior Proposal (taking into account any changes to the terms of this Agreement proposed by the other Party as a result of the negotiations required by clause (G) or otherwise); and (I) the board of directors of the Target Party reasonably determines in good faith, ~~exchange~~after obtaining and taking into account the advice of its outside legal counsel that, ~~pledge~~ in light of such Superior Proposal, a Change in Recommendation is required in order for such board of directors to comply with its fiduciary duties to its stockholders under the Applicable Legal Requirements; or (ii) if: (A) a material development or ~~otherwise dispose~~ change in circumstances occurs (that is not an Acquisition Proposal) or arises after the date of this Agreement that was neither known to Center Financial or ~~encumber~~ Nara or any of their respective executive officers, directors, advisors and representatives nor reasonably foreseeable by Center Financial or Nara or any of their respective executive officers, directors, advisors and representatives as of the date of this Agreement (such ~~warrants~~material development or change in such circumstances being referred to herein as an “Intervening Event”); (B) at least five business days prior to each meeting of the Center Financial Board or the Nara Board at which such board of directors intends to consider whether such Intervening Event requires such board of directors to effect or cause Center Financial (in the case of the Center Financial Board) or Nara (in the case of the Nara Board) to effect, a Change in Recommendation, the Party whose board of directors is to meet for such purpose provides the other Party with a written notice specifying the date and time of such meeting and the reasons for holding such meeting, including a reasonably detailed explanation of the Intervening Event (it being agreed that any material change in such Intervening Event shall require a new notice and five business day period); (C) during such five business day period, if requested by the Party so notified, the Party whose board of directors is to meet for such purpose engages in good faith negotiations with the Party so notified to amend this Agreement in a manner that obviates the need to effect or cause a Change in Recommendation as a result of such Intervening Event; and (D) the board of directors that is considering whether to effect a Change in Recommendation reasonably determines in good faith, after obtaining and taking into account the advice of outside legal counsel, that, in light of such Intervening Event, a Change in Recommendation is required in order for such board of directors to comply with its fiduciary duties to its stockholders under Applicable Legal Requirements.

Appears in 2 contracts

Samples: Merger Agreement (Nara Bancorp Inc), Merger Agreement (Center Financial Corp)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, Parent and the Company shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials ~~which~~ that shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/~~Prospectus”),~~ Prospectus and Parent shall ~~prepare, together with Company,~~ prepare and file with the SEC ~~a registration statement on~~ the Form ~~S-4 (of which the Joint~~ S-4. The Proxy Statement/Prospectus ~~shall~~ will be included as a ~~part) with respect to~~ prospectus in and will constitute a part of the ~~issuance of Parent Common Stock in the Merger (such~~ Form ~~S-4, and any amendments or supplements thereto, the “Form S-4”)~~S-4 as Parent’s prospectus. Each of Parent and the Company ~~shall:~~ shall use ~~commercially~~ reasonable commercial efforts to have the ~~Joint~~ Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby~~, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective~~. Each of Parent and the Company shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise ~~the~~ each other ~~party~~ of any oral comments with respect to the ~~Joint~~ Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint~~ Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None~~ Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Proxy Statement/Prospectus or the Form S-4 shall be made without the approval of both Parent and the ~~information supplied~~ Company, which approval shall not be unreasonably withheld or delayed; provided that, with respect to ~~be supplied~~ documents filed by ~~Company or Parent for inclusion or incorporation~~ a party hereto that are incorporated by reference in the ~~(A)~~ Form S-4 ~~will~~or Proxy Statement/Prospectus, at this right of approval shall apply only with respect to information relating to the ~~time~~ other party or its business, financial condition or results of operations; and provided, further, that Parent, in connection with a Change in the Parent Recommendation, and the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Proxy Statement/Prospectus or Form S-4 (including by incorporation by reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its board of directors’ deliberations and conclusions to be accurately described. The Company will use reasonable commercial efforts to cause the Proxy Statement/Prospectus to be mailed to the Company stockholders as promptly as practicable after the Form S-4 is ~~filed with the SEC and at the time it becomes~~ declared effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither . Each party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; hereto will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the ~~Joint~~ Proxy ~~Statement/~~Statement/ Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of~~ Parent or the ~~parties~~Company, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Parent or the Company and such information should be set forth in an amendment or supplement to any of the Form S-4 or the ~~Joint~~ Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company and Parent.~~ the Company. (b) The Company shall duly take all lawful action to call, give notice of, convene and hold ~~a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following~~ the ~~date upon which the Form S-4 becomes effective (the “~~Company Stockholders ~~Meeting”)~~ Meeting as soon as practicable on a date determined in accordance with the mutual agreement of Parent and the Company for the purpose of obtaining the ~~Bye-Law Vote and the Required~~ Company ~~Vote~~ Stockholder Approval and, subject to Section 06.3, ~~(i) Company~~ shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to ~~call~~solicit the Company Stockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, ~~give notice of~~the Company may adjourn or postpone the Company Stockholders Meeting to the extent necessary to ensure that any necessary supplement or amendment to the Proxy Statement/Prospectus is provided to the Company Stockholders in advance of a vote on the Merger and this Agreement or, ~~convene and hold a meeting~~ if as of ~~its stockholders as promptly as practicable, and in any event within 45 days, following~~ the ~~date upon~~ time for which the ~~Form S-4 becomes effective~~ Company Stockholders Meeting is originally scheduled (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation as set forth in the ~~Joint~~ Proxy Statement/Prospectus) there are insufficient shares of the Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders Meeting. The board of directors of the Company shall recommend the approval of the plan of merger contained in this Agreement by the Company Stockholders to the effect as set forth in Section 4.3 (the “Company Recommendation”), and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Parent ~~shall each use their commercially reasonable efforts to cause~~ or Merger Sub such recommendation or (ii) take any action or make any statement in connection with the Company Stockholders Meeting ~~and~~ inconsistent with such recommendation (collectively, a “Change in the ~~Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or~~ Company Recommendation”); provided, however, that the Board of Directors of ~~Parent makes~~ the Company may make a Change ~~of Parent~~ in the Company Recommendation pursuant to Section 6.3 hereof. Notwithstanding any Change in the Company Recommendation, ~~Parent shall,~~ this Agreement shall be submitted to the Company Stockholders at the Company Stockholders Meeting for the purpose of approving and ~~shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and~~ adopting this Agreement and the ~~transactions contemplated hereby, including~~ Merger and nothing contained herein shall be deemed to relieve the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such ~~Company Common Shares other than agreements entered into with Company, (B) directly~~ obligation unless this Agreement shall have first been terminated as set forth in Section 9.2 or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsSection 9.3.

Appears in 2 contracts

Samples: Merger Agreement (Vfinance Inc), Merger Agreement (National Holdings Corp)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ PNU and ~~Company~~ Monsanto shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC ~~mutually acceptable~~ proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Monsanto shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 ~~(of which the Joint Proxy Statement/Prospectus shall be a part)~~ with respect to the issuance of ~~Parent~~ Monsanto Common Stock and Monsanto Convertible Preferred Stock in the Merger (~~such~~ the "Form S-4~~, and any amendments or supplements thereto, the “Form S-4”~~"). ~~Each of Parent and Company shall: use commercially reasonable efforts to have the~~ The Joint Proxy Statement/~~cleared by~~ Prospectus will be included in and will constitute a part of the ~~SEC~~ Form S-4 as Monsanto's prospectus. Each of PNU and Monsanto shall use reasonable best efforts to have the Form S-4 declared effective by the ~~SEC,~~ SEC as promptly as reasonably practicable after filing with the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. PNU and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Monsanto shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . Monsanto shall provide ~~the other party~~ PNU with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint Proxy Statement/and the~~ Form S-4 prior to filing such with the SEC, and ~~each party will provide the other party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will, at~~ or the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party Form S-4 shall be ~~responsible~~ made without the approval of both parties, which approval shall not be unreasonably withheld or ~~liable for any statements made or~~ delayed; provided, that with respect to documents filed by a party which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. PNU will use reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~PNU stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ Monsanto will use reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to Monsanto's stockholders, in each case as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities ~~Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to~~ Act. Monsanto shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Share Issuance and ~~each party~~ PNU shall furnish all information concerning it PNU and the holders of ~~its capital stock~~ PNU Common Stock and PNU Convertible Preferred Stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Monsanto Common Stock or the Monsanto Convertible Preferred Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~PNU or Monsanto, or any of their respective affiliates, officers or directors, should be discovered by PNU or Monsanto which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ the y were made, not ~~misleading~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ PNU and ~~Parent. Company shall~~ Monsanto. (b) Subject to Section 5.5, Monsanto shall, as promptly as reasonably practicable following the execution of this Agreement, duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ (the ~~“Company~~ "Monsanto Stockholders Meeting”") (which meeting the parties intend to be held no later than May 15, 2000 or as soon as practicable thereafter) for the purpose of obtaining the ~~Bye-Law Vote~~ Required Monsanto Votes with respect to the Share Issuance and the ~~Required Company Vote and~~Charter Amendment, ~~subject to Section 0, (i) Company~~ and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Bye-Law Vote~~ approval of the Share Issuance and the Charter Amendment by the Required ~~Company Vote in accordance with applicable legal requirements~~ Monsanto Votes; and ~~(ii)~~ the ~~Special Committee and~~ Board of Directors of ~~Company shall include~~ Monsanto shall, subject to its fiduciary duties under applicable law, recommend approval of the ~~Bye-Law Recommendation~~ Share Issuance and the ~~Company Recommendation~~ Charter Amendment by the stockholders of Monsanto to the effect as set forth in Section 3.2(f), and shall not, subject to its fiduciary duties under applicable law, withdraw, modify or materially qualify in any manner adverse to PNU such recommendation or take any action or make any statement in connection with the Monsanto Stockholders Meeting materially inconsistent with such recommendation (any such withdrawal, modification, qualification or statement (whether or not required), an "Adverse Change in the ~~Joint Proxy Statement/Prospectus. Parent shall~~ Monsanto Recommendation"). (c) Subject to Section 5.5, PNU shall, as promptly as reasonably practicable following the execution of this Agreement, duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ (the ~~“Parent~~ "PNU Stockholders Meeting”") (which meeting the parties intend to be held no later than May 15, 2000 or as soon as practicable thereafter) for the purpose of obtaining the Required ~~Parent~~ PNU Vote ~~and~~with respect to the transactions contemplated by this Agreement, ~~subject to Section 5.4, (i) Parent~~ and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the adoption of this Agreement by the Required ~~Parent Vote in accordance with applicable legal requirements~~ PNU Vote; and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of ~~Parent makes a Change~~ PNU shall, subject to its fiduciary duties under applicable law, recommend adoption of ~~Parent Recommendation, Parent shall~~this Agreement by the stockholders of PNU to the effect as set forth in Section 3.1(f), and shall ~~cause~~ not, subject to its ~~subsidiaries to~~fiduciary duties under applicable law, ~~Vote all Company Common Shares held by it~~ withdraw, modify or ~~its subsidiaries as follows:~~ materially qualify in ~~favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of~~ any ~~other matter intended~~ manner adverse to ~~facilitate the timely consummation of the Merger, against~~ Monsanto such recommendation or take any action or ~~agreement~~ make any statement in connection with the PNU Stockholders Meeting materially inconsistent with such recommendation (~~including~~ any ~~merger~~such withdrawal, ~~amalgamation~~modification, ~~consolidation~~qualification or statement (whether of not required), ~~business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for~~ an "Adverse Change in the ~~Merger~~PNU Recommendation")) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 2 contracts

Samples: Merger Agreement (Pharmacia & Upjohn Inc), Merger Agreement (Pharmacia Corp /De/)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ AHP and ~~Company~~ Monsanto shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC ~~mutually acceptable~~ proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ AHP shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 with respect to the issuance of AHP Common Stock in the Merger (the "Form S-4"). The Joint Proxy Statement/Prospectus will be included in and will constitute a part of ~~which~~ the Form S-4 as AHP's prospectus. The Form S-4 and the Joint Proxy Statement/Prospectus shall ~~be a part)~~ comply as to form in all material respects with ~~respect to~~ the ~~issuance~~ applicable provisions of ~~Parent Common Stock in~~ the ~~Merger (such Form S-4,~~ Securities Act and ~~any amendments or supplements thereto,~~ the ~~“Form S-4”)~~Exchange Act and the rules and regulations thereunder. Each of ~~Parent~~ AHP and ~~Company shall:~~ Monsanto shall use ~~commercially~~ reasonable best efforts to have ~~the Joint Proxy Statement/cleared by the SEC and~~ the Form S-4 declared effective by the ~~SEC,~~ SEC as promptly as reasonably practicable after filing with the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. AHP and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Monsanto shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . AHP will provide ~~the other party~~ Monsanto with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint Proxy Statement/and the~~ Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the other party~~ Monsanto with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will, at~~ or the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party Form S-4 shall be ~~responsible~~ made without the approval of both parties, which approval shall not be unreasonably withheld or ~~liable for any statements made or~~ delayed; provided, that with respect to documents filed by a party which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. AHP will use reasonable best efforts to cause the Joint Proxy Statements/Prospectus to be mailed to AHP stockholders, and Monsanto will use reasonable best efforts to cause the Joint Proxy Statement/~~and~~ Prospectus to be mailed to Monsanto's stockholders, in each case as promptly as practicable after the Form S-4 ~~to comply as to form in all material respects with the requirements of the Exchange Act and~~ is declared effective under the Securities Act~~, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty~~ . AHP shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Share Issuance and ~~each party~~ Monsanto shall furnish all information concerning it Monsanto and the holders of ~~its capital stock~~ Monsanto Common Stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ AHP Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~AHP or Monsanto, or any of their respective affiliates, officers or directors, should be discovered by AHP or Monsanto which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ AHP and ~~Parent. Company shall~~ Monsanto. (b) Subject to Section 5.5, Monsanto shall, as promptly as reasonably practicable following the execution of this Agreement, duly take (subject to compliance with the provisions of Section 3.1(e) and Section 3.2(e) (provided that Monsanto shall have used reasonable best efforts to ensure that such representation is true and correct)), all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ (the ~~“Company~~ "Monsanto Stockholders Meeting”") (which meeting the parties intend to be held no later than October 1, 1998) for the purpose of obtaining the ~~Bye-Law~~ Required Monsanto Vote with respect to the transactions contemplated by this Agreement, shall take all lawful action to solicit the adoption of this Agreement by the Required Monsanto Vote; and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of ~~Company~~ Monsanto shall ~~include~~ recommend adoption of this Agreement by the ~~Bye-Law Recommendation~~ stockholders of Monsanto to the effect as set forth in Section 3.2(f), and shall not withdraw, modify or materially qualify in any manner adverse to AHP such recommendation or take any action or make any statement in connection with the ~~Company Recommendation~~ Monsanto Stockholders Meeting materially inconsistent with such recommendation (collectively, an "Adverse Change in the Monsanto Recommendation"); provided the foregoing shall not prohibit accurate disclosure (and such disclosure shall not be deemed to be an Adverse Change in the Monsanto Recommendation) of factual information regarding the business, financial condition or results of operations of AHP or Monsanto or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal (provided, that the Board of Directors of Monsanto does not withdraw, modify or materially qualify in any manner adverse to AHP its recommendation) in the Form S-4 or the Joint Proxy Statement/Prospectus~~. Parent shall~~ , to the extent such information, facts, identity or terms is required to be disclosed therein under applicable law; provided further that the Board of Directors of Monsanto may make an Adverse Change in the Monsanto Recommendation prior to the Monsanto Stockholders Meeting if (i) after the date of this Agreement, Monsanto acquires Knowledge of facts or circumstances that the Board of Directors of Monsanto determines in good faith constitute a material adverse development with respect to AHP and (ii) the Board of Directors of Monsanto determines in good faith that because of such material adverse development, based upon the advice of outside legal counsel to Monsanto, the failure to effect such Adverse Change in the Monsanto Recommendation would violate the fiduciary duties of the Monsanto Board of Directors under applicable law. (c) Subject to Section 5.5, AHP shall, as promptly as reasonably practicable following the execution of this Agreement, duly take (subject to compliance with the provisions of Section 3.2(e) and Section 3.1(e) (provided that AHP shall have used reasonable best efforts to ensure that such representation is true and correct) all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ (the ~~“Parent~~ "AHP Stockholders Meeting”") (which meeting the parties intend to be held no later than October 1, 1998) for the purpose of obtaining the Required ~~Parent~~ AHP Vote ~~and~~with respect to the Share Issuance, ~~subject to Section 5.4, (i) Parent~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the approval of the Share Issuance by the Required ~~Parent Vote in accordance with applicable legal requirements~~ AHP Vote; and ~~(ii)~~ the ~~Special Committee and~~ Board of Directors of ~~Parent~~ AHP shall ~~include~~ recommend approval of the ~~Parent Recommendation~~ Share Issuance by the stockholders of AHP to the effect as set forth in Section 3.1(f), and shall not withdraw, modify or materially qualify in any manner adverse to Monsanto such recommendation or take any action or make any statement in connection with the AHP Stockholders Meeting materially inconsistent with such recommendation (collectively, an "Adverse Change in the AHP Recommendation"); provided the foregoing shall not prohibit accurate disclosure (and such disclosure shall not be deemed to be an Adverse Change in the AHP Recommendation) of factual information regarding the business, financial condition or operations of AHP or Monsanto or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal (provided, that the Board of Directors of AHP does not withdraw, modify or materially qualify in any manner adverse to Monsanto its recommendation) in the Form S-4 or the Joint Proxy Statement/Prospectus~~. Company and Parent shall each use their commercially reasonable efforts~~ , to ~~cause~~ the ~~Company Stockholders Meeting and the Parent Stockholders Meeting~~ extent such information, facts, identity or terms is required to be ~~held on the same date. Unless Parent’s Special Committee or~~ disclosed therein under applicable law; provided further that the Board of Directors of ~~Parent makes a~~ AHP may make an Adverse Change in the AHP Recommendation prior to the AHP Stockholders Meeting if (i) after the date of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement~~. In furtherance~~ , AHP acquires Knowledge of facts or circumstances that the ~~foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any~~ Board of ~~its Company Common Shares~~ Directors of AHP determines in good faith constitute a ~~Voting trust or subject any of its Company Common Shares to any arrangement~~ material adverse development with respect to Monsanto and (ii) the ~~Voting~~ Board of Directors of AHP determines in good faith that because of such ~~Company Common Shares other than agreements entered into with Company~~material adverse development, ~~(B) directly or indirectly transfer~~based upon the advice of outside legal counsel to AHP, ~~sell, assign, convey, offer, exchange, pledge or otherwise dispose~~ the failure to effect such Adverse Change in the AHP Recommendation would violate the fiduciary duties of ~~or encumber any~~ the AHP Board of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsDirectors under applicable law.

Appears in 2 contracts

Samples: Merger Agreement (American Home Products Corp), Merger Agreement (Monsanto Co)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent and Company~~ each of the parties hereto shall cooperate in preparing and ~~each~~ shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the joint proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company~~ VEREIT stockholders at the ~~Company~~ VEREIT Stockholders Meeting (as defined below) and to the ~~Parent~~ Realty Income stockholders at the ~~Parent~~ Realty Income Stockholders Meeting (as defined below) (such joint proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and ~~Parent~~ Realty Income (and, if required, Merger Sub 1 and Merger Sub 2) shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the ~~issuance of Parent Common~~ Realty Income Stock ~~in the Merger~~ Issuance (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). Each of ~~Parent and Company shall:~~ the parties hereto shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the ~~Merger~~ Mergers and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. VEREIT and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Realty Income shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or the Form S-4 received from the SEC; . Each party shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither Each party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use ~~commercially~~ its reasonable best efforts to take any action required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Mergers and the Realty Income Stock Issuance, and each party shall furnish all information concerning it and the holders of its capital stock or shares of common stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Realty Income Common Stock issuable in connection with the ~~Merger~~ Mergers for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Partnership Merger Effective ~~Time it discovers~~ Time, any information relating to either of the parties, or their respective affiliates, officers or directors, ~~which~~ should be discovered by either party, and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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~~ misleading, the party that discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ VEREIT and ~~Parent. Company~~ Realty Income. (b) VEREIT shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the “~~Company~~ VEREIT Stockholders Meeting”) for the purpose of obtaining the ~~Bye-Law Vote and the~~ VEREIT Required ~~Company Vote and, subject to Section 0,~~ Stockholders Vote. Unless a Change in VEREIT Recommendation (ias defined below) ~~Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote~~ has occurred in accordance with ~~applicable legal requirements and (ii)~~ Section 5.4, the ~~Special Committee and~~ Board of Directors of ~~Company~~ VEREIT shall ~~include~~ use its reasonable best efforts to obtain from the ~~Bye-Law~~ stockholders of VEREIT the VEREIT Required Stockholders Vote. VEREIT covenants that, unless a Change in VEREIT Recommendation has occurred in accordance with Section 5.4, VEREIT will, through its Board of Directors, recommend to its stockholders approval of the Merger and ~~the Company Recommendation in~~ further covenants that the Joint Proxy Statement/~~Prospectus~~Prospectus and the Form S-4 will include such recommendation. ~~Parent~~ Notwithstanding the foregoing provisions of this Section 5.1(b), if, on a date for which the VEREIT Stockholders Meeting is scheduled, VEREIT has not received proxies representing a sufficient number of shares of VEREIT Common Stock to obtain the VEREIT Required Stockholders Vote, whether or not a quorum is present, VEREIT shall have the right to make one or more successive postponements or adjournments of the VEREIT Stockholders Meeting; provided that the VEREIT Stockholders Meeting is not postponed or adjourned to a date that is more than thirty (30) days after the date for which the VEREIT Stockholders Meeting was originally scheduled (excluding any adjournments or postponements required by applicable Law). VEREIT agrees that, unless this Agreement shall have been terminated in accordance with Section 7.1, its obligations to hold the VEREIT Stockholders Meeting pursuant to this Section 5.1(b) shall not be affected by the commencement, public proposal, public disclosure or communication to VEREIT of any Acquisition Proposal (as defined below) or by any Change in VEREIT Recommendation. (c) Realty Income shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the “~~Parent~~ Realty Income Stockholders Meeting”) for the purpose of obtaining the Realty Income Required ~~Parent Vote and, subject to~~ Stockholders Vote. Unless a Change in Realty Income Recommendation has occurred in accordance with Section 5.4, ~~(i) Parent shall use commercially reasonable efforts to solicit and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Board of Directors of ~~Parent~~ Realty Income shall ~~include~~ use its reasonable best efforts to obtain from the ~~Parent~~ stockholders of Realty Income the Realty Income Required Stockholders Vote. Realty Income covenants that, unless a Change in Realty Income Recommendation has occurred in accordance with Section 5.4, Realty Income will, through its Board of Directors, recommend to its stockholders approval of the Realty Income Stock Issuance and further covenants that the Joint Proxy Statement/~~Prospectus~~Prospectus and the Form S-4 will include such recommendation. ~~Company and Parent~~ Notwithstanding the foregoing provisions of this Section 5.1(c), if, on a date for which the Realty Income Stockholders Meeting is scheduled, Realty Income has not received proxies representing a sufficient number of shares of Realty Income Common Stock to obtain the Realty Income Required Stockholders Vote, whether or not a quorum is present, Realty Income shall ~~each~~ have the right to make one or more successive postponements or adjournments of the Realty Income Stockholders Meeting; provided that the Realty Income Stockholders Meeting is not postponed or adjourned to a date that is more than thirty (30) days after the date for which the Realty Income Stockholders Meeting was originally scheduled (excluding any adjournments or postponements required by applicable Law). Realty Income agrees that, unless this Agreement shall have been terminated in accordance with Section 7.1, its obligations to hold the Realty Income Stockholders Meeting pursuant to this Section 5.1(c) shall not be affected by the commencement, public proposal, public disclosure or communication to Realty Income of any Acquisition Proposal or by any Change in Realty Income Recommendation. (d) Each of the parties hereto shall use their ~~commercially~~ reasonable best efforts to cause the ~~Company~~ VEREIT Stockholders Meeting and the ~~Parent~~ Realty Income Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 2 contracts

Samples: Merger Agreement (VEREIT Operating Partnership, L.P.), Merger Agreement (Realty Income Corp)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Buyer and the Company shall cooperate in preparing (including by causing their tax counsel to provide tax opinions) and each shall cause to be filed with the SEC mutually acceptable proxy materials ~~which~~ that shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus and Buyer shall ~~be a part)~~ prepare and file with ~~respect to~~ the ~~issuance of Parent Common Stock in~~ SEC the ~~Merger (such~~ Form S-4, . The Joint Proxy Statement/Prospectus will be included as a prospectus in and ~~any amendments or supplements thereto,~~ will constitute a part of the “Form ~~S-4”)~~S-4 as Buyer's prospectus. Each of ~~Parent~~ Buyer and the Company ~~shall:~~ shall use ~~commercially~~ its reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC as soon after such filing as practicable and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby, . Each of Buyer and ~~to mail~~ the ~~Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and~~ Company shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written ~~comments~~ comments, and advise ~~the~~ each other ~~party~~ of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both Buyer and the Company, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger~~unreasonably withheld or delayed; provided, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ hereto that are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. Buyer will use reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~Buyer stockholders, and the ~~rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ Company will use reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/~~or Form S-4. Parent and Company shall make any necessary filings with respect~~ Prospectus to be mailed to the ~~Merger~~ Company stockholders, in each case, as promptly as practicable after the Form S-4 is declared effective under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; advise the other partyAct. If, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/or the Form S-4; and promptly notify the other party if at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of~~ Buyer or the ~~parties~~Company, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Buyer or the Company and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Buyer and ~~Parent.~~ the Company. (b) The Company shall duly take all ~~lawful~~ commercially reasonable action to call, give notice of, convene and hold ~~a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following~~ the ~~date upon which the Form S-4 becomes effective (the “~~Company Stockholders ~~Meeting”)~~ Meeting as soon as practicable on a date determined in accordance with the mutual agreement of Buyer and the Company for the purpose of obtaining the ~~Bye-Law Vote and the Required~~ Company ~~Vote~~ Stockholder Approval and, subject to Section 06.4, ~~(i) Company~~ shall ~~use~~ take all commercially reasonable ~~efforts~~ action to solicit ~~and secure~~ the ~~Bye-Law Vote and the Required~~ Company ~~Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Stockholder Approval. The Board of Directors of the Company shall ~~include~~ recommend the ~~Bye-Law Recommendation~~ approval and adoption of the plan of Merger contained in this Agreement by the stockholders of the Company to the effect as set forth in Section 4.1(w) (the "COMPANY RECOMMENDATION"), and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Buyer such recommendation or (ii) take any action or make any statement in connection with the Company Stockholders Meeting inconsistent with such recommendation (collectively, a "CHANGE IN THE COMPANY RECOMMENDATION"); provided, however, that the Board of Directors of the Company may make a Change in the Company Recommendation ~~in the Joint Proxy Statement/Prospectus. Parent~~ pursuant to Section 6.4 hereof. (c) Buyer shall duly take all ~~lawful~~ commercially reasonable action to call, give notice of, convene and hold the Buyer Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Buyer and ~~in any event within 45 days, following~~ the ~~date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”)~~ Company for the purpose of obtaining the ~~Required Parent Vote~~ Buyer Stockholder Approval and, ~~subject to Section 5.4, (i) Parent~~ shall ~~use~~ take all commercially reasonable ~~efforts~~ action, consistent with its fiduciary duties, to solicit ~~and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Buyer Stockholder Approval. The Board of Directors of ~~Parent shall include~~ Buyer shall, recommend the ~~Parent Recommendation~~ approval of the issuance of Buyer Common Stock in the ~~Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause~~ Merger by the ~~Company Stockholders Meeting and~~ stockholders of Buyer (the ~~Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall~~"BUYER RECOMMENDATION"), and shall ~~cause its subsidiaries to~~not (i) withdraw, ~~Vote all~~ modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Company ~~Common Shares held by it~~ such recommendation or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against (ii) take any action or ~~agreement~~ make any statement in connection with the Buyer Stockholders Meeting inconsistent with such recommendation (~~including any merger~~collectively, ~~amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger~~a "CHANGE IN THE BUYER RECOMMENDATION")) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 2 contracts

Samples: Merger Agreement (Lightspan Inc), Merger Agreement (Plato Learning Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, Parent and the Company shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC mutually acceptable proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and Parent shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 or such other applicable form with respect to the issuance of Parent Ordinary Shares in the Merger (the "Form S-4"). The Joint Proxy Statement/Prospectus will be included in and will constitute a part of ~~which~~ the Form S-4 as Parent's prospectus. The Form S-4 and the Joint Proxy Statement/Prospectus shall ~~be a part)~~ comply as to form in all material respects with ~~respect to~~ the ~~issuance~~ applicable provisions of ~~Parent Common Stock in~~ the ~~Merger (such Form S-4,~~ Securities Act and ~~any amendments or supplements thereto,~~ the ~~“Form S-4”)~~Exchange Act and the rules and regulations thereunder. Each of Parent and the Company ~~shall:~~ shall use ~~commercially~~ reasonable best efforts to have ~~the Joint Proxy Statement/cleared by the SEC and~~ the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective~~thereby. Parent and the Company shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . Parent will provide the ~~other party~~ Company with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint Proxy Statement/and the~~ Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide the ~~other party~~ Company with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will, at~~ or the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party Form S-4 shall be ~~responsible~~ made without the approval of both parties, which approval shall not be unreasonably withheld or ~~liable for any statements made or~~ delayed; provided, that with respect to documents filed by a party which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other ~~party for inclusion or incorporation by reference therein;~~ party. Parent will use reasonable best efforts to cause the Joint Proxy Statements/Prospectus to be mailed to Parent's shareholders, and the Company will use reasonable best efforts to cause the Joint Proxy Statement/~~and~~ Prospectus to be mailed to the Company's stockholders, in each case after the Form S-4 ~~to comply as to form in all material respects with the requirements of the Exchange Act and~~ is declared effective under the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent ~~and Company~~ shall ~~make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to~~ also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Share Issuance and ~~each party~~ the Company shall furnish all information concerning it the Company and the holders of ~~its capital stock~~ Company Common Stock and Company Preferred Stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent ~~Common Stock~~ Ordinary Shares issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of~~ Parent or the ~~parties~~Company, or any of their respective affiliates, officers or directors, should be discovered by Parent or the Company which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Parent and ~~Parent.~~ the Company. (b) The Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders on a date as ~~promptly~~ soon as ~~practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ reasonably practicable (the “"Company Stockholders Meeting”") for the purpose of obtaining the ~~Bye-Law~~ Required Company Vote with respect to the transactions contemplated by this Agreement and shall take all lawful action to solicit the adoption of this Agreement and approval of the Merger by the Required Company ~~Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote~~ Vote; and the ~~Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Board of Directors of the Company shall ~~include~~ recommend adoption of this Agreement and approval of the ~~Bye-Law Recommendation and~~ Merger by the stockholders of the Company ~~Recommendation~~ to the effect as set forth in Section 3.2(f) (the "Company Recommendation"), and shall not withdraw, modify or qualify (or propose to withdraw, modify or qualify) (a "Change") in any manner adverse to Parent such recommendation or take any action or make any statement in connection with the Company Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in Company Recommendation"); provided the foregoing shall not prohibit accurate disclosure to the extent required by applicable law (and such disclosure shall not be deemed to be a Change in Company Recommendation) of factual information regarding the business, financial condition or results of operations of Parent or the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal (provided, that the Board of Directors of the Company does not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Parent its recommendation) in the Form S-4 or the Joint Proxy Statement/~~Prospectus.~~ Prospectus or otherwise. (c) Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders on a date as ~~promptly~~ soon as ~~practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ reasonably practicable (the “"Parent Stockholders Meeting”") for the purpose of obtaining the ~~Required~~ Parent ~~Vote and, subject to Section 5.4, (i) Parent~~ Stockholder Approval and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit the approval of the Share Issuance, the Memorandum Amendment and ~~secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements~~ Articles Amendment and ~~(ii)~~ the ~~Special Committee and~~ Board of Directors of Parent shall ~~include~~ recommend approval of the Share Issuance and adoption of the Memorandum Amendment and the Articles Amendment by the shareholders of Parent ~~Recommendation~~ to the effect as set forth in Section 3.1(f) (the ~~Joint Proxy Statement/Prospectus. Company~~ "Parent Recommendation"), and ~~Parent~~ shall ~~each use their commercially reasonable efforts~~ not Change in any manner adverse to ~~cause~~ the Company ~~Stockholders Meeting and~~ such recommendation or take any action or make any statement in connection with the Parent Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the Parent Recommendation"); provided the foregoing shall not prohibit accurate disclosure to the extent required by applicable law (and such disclosure shall not be deemed to be ~~held on~~ a Change in the ~~same date. Unless Parent’s Special Committee~~ Parent Recommendation) of factual information regarding the business, financial condition or operations of Parent or the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal (provided, that the Board of Directors of Parent ~~makes a Change of Parent Recommendation~~does not withdraw, ~~Parent shall~~modify or qualify (or propose to withdraw, ~~and shall cause its subsidiaries to, Vote all Company Common Shares held by it~~ modify or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)qualify) ~~that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case,~~ in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect manner adverse to the ~~Voting of such~~ Company ~~Common Shares other than agreements entered into with Company, (B~~its recommendation) ~~directly~~ in the Form S-4 or ~~indirectly transfer, sell, assign, convey, offer, exchange, pledge~~ the Joint Proxy Statement/Prospectus or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsotherwise.

Appears in 2 contracts

Samples: Merger Agreement (Williams Companies Inc), Merger Agreement (Apco Argentina Inc/New)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ CCA and ~~Company~~ StorCOMM shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC mutually acceptable proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), ) and ~~Parent~~ CCA shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 ~~(of which the Joint Proxy Statement/Prospectus shall be a part)~~ with respect to the issuance of ~~Parent~~ CCA Common Stock in the Merger (~~such Form S-4, and any amendments or supplements thereto,~~ the “Form S-4”). The Joint Proxy Statement/Prospectus will be included in and will constitute a part of the Form S-4 as CCA’s prospectus. Each of ~~Parent~~ CCA and ~~Company shall:~~ StorCOMM shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC as promptly as reasonably practicable after filing with the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. CCA and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ StorCOMM shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or the Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both CCA and StorCOMM, at which approval shall not be unreasonably withheld or delayed; provided that with respect to documents filed by a party which are incorporated by reference in the ~~date~~ Form S-4 or Joint Proxy Statement/Prospectus, this right of ~~mailing~~ approval shall apply only with respect to ~~stockholders~~ information relating to the other party or its business, financial condition or results of operations; and ~~at the times of the meetings of stockholders to be held~~ provided, further, that CCA, in connection with a Change in the ~~Merger~~CCA Recommendation, ~~contain any untrue statement~~ and StorCOMM, in connection with a Change in the StorCOMM Recommendation (each of a ~~material fact or omit~~ Change in the CCA Recommendation and a Change in the StorCOMM Recommendation being hereinafter sometimes referred to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (Bas a “Change”), ~~neither party~~ may amend or supplement the Joint Proxy Statement/Prospectus or the Form S-4 (including by incorporation by reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall ~~be responsible or liable for any statements made or incorporated by reference therein based on~~ apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors’ deliberations and conclusions accurately described. CCA will use reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~CCA’s stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ StorCOMM will use reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to StorCOMM’s stockholders, in each case as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities ~~Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to~~ Act. CCA shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the issuance of CCA Common Stock in the Merger and ~~each party~~ StorCOMM and CCA shall furnish all information concerning it StorCOMM and CCA and the holders of ~~its capital stock~~ StorCOMM Common Stock as may be reasonably requested in connection with any such action; . Each of CCA and StorCOMM will advise the ~~other party~~other, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop ~~order~~order with respect to the Form S-4, the suspension of the qualification of the ~~Parent~~ CCA Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~CCA or StorCOMM, or any of their respective affiliates, officers or directors, is discovered by CCA or StorCOMM which should be set forth in an amendment or supplement to ~~any of~~ the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by ~~law, rules or regulations~~Applicable Laws, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders ~~of Company~~ CCA and ~~Parent. Company~~ StorCOMM. (b) StorCOMM shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable,~~ on a date determined in accordance with the mutual agreement of CCA and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ StorCOMM (the “~~Company~~ StorCOMM Stockholders Meeting”) for the purpose of obtaining the ~~Bye-Law~~ Required StorCOMM Vote with respect to the transactions contemplated by this Agreement and shall take all lawful action to solicit the approval and adoption of this Agreement and the Merger by the Required ~~Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote~~ StorCOMM Vote; and the ~~Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Board of Directors of ~~Company~~ StorCOMM shall ~~include the Bye-Law Recommendation~~ recommend approval and adoption of this Agreement and the ~~Company~~ Merger by the stockholders of StorCOMM to the effect as set forth in Section 3.1(f) (the “StorCOMM Recommendation”), and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to CCA the StorCOMM Recommendation or (ii) take any action or make any statement in connection with the StorCOMM Stockholders Meeting inconsistent with such recommendation (collectively, a “Change in the ~~Joint Proxy Statement/Prospectus~~StorCOMM Recommendation”); provided, however, that the Board of Directors of StorCOMM May make a Change in the StorCOMM Recommendation pursuant to Section 5.8. ~~Parent~~ Notwithstanding any Change in the StorCOMM Recommendation, this Agreement shall be submitted to the stockholders of StorCOMM at the StorCOMM Stockholders Meeting for the purpose of approving and adopting this Agreement and the Merger and nothing contained herein shall be deemed to relieve StorCOMM of such obligation. (c) CCA shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable,~~ on a date determined in accordance with the mutual agreement of CCA and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ StorCOMM (the “~~Parent~~ CCA Stockholders Meeting”) for the purpose of obtaining the Required ~~Parent~~ CCA Vote ~~and, subject~~ with respect to ~~Section 5.4, (i) Parent~~ the transactions contemplated by this Agreement and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the approval of the issuance of CCA Common Stock in the Merger pursuant to this Agreement by the Required ~~Parent Vote in accordance with applicable legal requirements~~ CCA Vote, and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of ~~Parent makes~~ CCA shall recommend approval of the issuance of CCA Common Stock in the Merger pursuant to this Agreement by the stockholders of CCA to the effect as set forth in Section 3.2(f) (the “CCA Recommendation”) and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to StorCOMM the CCA Recommendation or (ii) take any action or make any statement in connection with the CCA Stockholders Meeting inconsistent with such recommendation (collectively, a “Change in the CCA Recommendation”); provided, however, that the Board of Directors of CCA May make a Change ~~of Parent~~ in the CCA Recommendation pursuant to Section 5.8. Notwithstanding any Change in the CCA Recommendation, ~~Parent shall, and~~ the issuance of CCA Common Stock in the Merger pursuant to this Agreement shall ~~cause its subsidiaries to, Vote all Company~~ be submitted to the stockholders of CCA at the CCA Stockholders Meeting for the purpose of approving the issuance of CCA Common ~~Shares held by it or its subsidiaries as follows:~~ Stock in ~~favor of approval and adoption of~~ the ~~Bye-Law Amendments and~~ Merger pursuant to this Agreement and ~~the transactions contemplated hereby, including the Merger, in favor of any other matter intended~~ nothing contained herein shall be deemed to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting relieve CCA of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsobligation.

Appears in 1 contract

Samples: Merger Agreement (Creative Computer Applications Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ but in no event more than 30 days of the date hereof, OLYMPIC and ~~Company~~ FMFK shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials ~~which~~ that shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus and FMFK shall ~~be a part)~~ prepare and file with ~~respect to~~ the ~~issuance of Parent Common Stock in~~ SEC the ~~Merger (such~~ Form S-4, . The Joint Proxy Statement/Prospectus will be included as a prospectus in and ~~any amendments or supplements thereto,~~ will constitute a part of the “Form ~~S-4”)~~S-4 as FMFK's prospectus. Each of ~~Parent~~ OLYMPIC and ~~Company shall:~~ FMFK shall use ~~commercially~~ reasonable commercial efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by 55 the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby, . Each of OLYMPIC and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ FMFK shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise ~~the~~ each other ~~party~~ of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both OLYMPIC and FMFK, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ hereto that are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or its business, financial condition or results of operations; and provided, further, that OLYMPIC, in connection with a Change in the OLYMPIC Recommendation, and FMFK, in connection with a Change in FMFK Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by ~~reference therein;~~ reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its board of directors' deliberations and conclusions to be accurately described. OLYMPIC will use reasonable commercial efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~OLYMPIC stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ FMFK will use reasonable commercial efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to FMFK stockholders, in each case, as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each Act. Each party ~~shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action;~~ hereto will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ FMFK Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy ~~Statement/~~Statement/ Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of the parties~~OLYMPIC or FMFK or MERGER SUB, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by OLYMPIC or FMFK and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ OLYMPIC and ~~Parent. Company~~ FMFK. (b) FMFK shall duly take all lawful action to call, give notice of, convene and hold FMFK Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ OLYMPIC and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”)~~ FMFK for the purpose of obtaining ~~the Bye-Law Vote and the Required Company Vote~~ FMFK Stockholder Approval and, subject to Section 06.3, ~~(i) Company~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit FMFK Stockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, FMFK may adjourn or postpone FMFK Stockholders Meeting to the extent necessary to ensure that any necessary supplement or amendment to the Joint Proxy Statement/Prospectus is provided to FMFK's stockholders in advance of a vote on the Merger and ~~secure~~ this Agreement or, if as of the ~~Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and~~ time for which FMFK Stockholders Meeting is originally scheduled (~~ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation~~ as set forth in the Joint Proxy Statement/Prospectus) there are insufficient shares of FMFK Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of FMFK Stockholders Meeting. ~~Parent~~ The Board of Directors of FMFK shall recommend the approval of the plan of merger contained in this Agreement by the stockholders of FMFK to the effect as set forth in Section 4.3 (the "FMFK Recommendation"), and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to OLYMPIC such recommendation or (ii) take any action or make any statement in connection with FMFK Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in FMFK Recommendation"); provided, however, that the Board of Directors of FMFK may make a Change in FMFK Recommendation pursuant to Section 6.3 hereof. Notwithstanding any Change in FMFK Recommendation, this Agreement shall be submitted to the stockholders of FMFK at FMFK Stockholders Meeting for the purpose of approving and adopting this Agreement and the Merger and nothing contained herein shall be deemed to relieve FMFK of such obligation unless this Agreement shall have first been terminated as set forth in Section 9.2 or Section 9.3. (c) OLYMPIC shall duly take all lawful action to call, give notice of, convene and hold OLYMPIC Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ OLYMPIC and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”)~~ FMFK for the purpose of obtaining ~~the Required Parent Vote~~ OLYMPIC Stockholder Approval and, subject to Section ~~5.4~~6.4, ~~(i) Parent~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit OLYMPIC Stockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, OLYMPIC may adjourn or postpone OLYMPIC Stockholders Meeting to the extent necessary to ensure that any necessary supplement or amendment to the Joint Proxy Statement/Prospectus is provided to OLYMPIC's shareholders in advance of a vote on the approval of the Merger, the adoption of the Agreement and ~~secure~~ the ~~Required Parent Vote~~ approval of the issuance of OLYMPIC Common Stock in ~~accordance with applicable legal requirements~~ the Merger and this Agreement or, if as of the time for which OLYMPIC Stockholders Meeting is originally scheduled (~~ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation~~ as set forth in the Joint Proxy Statement/Prospectus) there are insufficient shares of OLYMPIC Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of OLYMPIC Stockholders Meeting. ~~Company~~ The Board of Directors of OLYMPIC shall recommend the approval of this Agreement and ~~Parent~~ the Merger by the stockholders of OLYMPIC as set forth in Section 5.3 (the "OLYMPIC Recommendation"), and shall ~~each use their commercially reasonable efforts~~ not (i) withdraw, modify or qualify (or propose to ~~cause the Company~~ withdraw, modify or qualify) in any manner adverse to FMFK such recommendation or (ii) take any action or make any statement in connection with OLYMPIC Stockholders Meeting ~~and~~ inconsistent with such recommendation (collectively, a "Change in the ~~Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or~~ OLYMPIC Recommendation"); provided, however, that the Board of Directors of ~~Parent makes~~ OLYMPIC may make a Change ~~of Parent~~ in the OLYMPIC Recommendation pursuant to Section 6.4 hereof. Notwithstanding any Change in the OLYMPIC Recommendation, ~~Parent shall,~~ this Agreement shall be submitted to the stockholders of OLYMPIC at OLYMPIC Stockholders Meeting for the purpose of approving and ~~shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and~~ adopting this Agreement and the ~~transactions contemplated hereby, including the Merger, in favor of any other matter intended~~ Merger and nothing contained herein shall be deemed to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting relieve OLYMPIC of such ~~Company Common Shares other than agreements entered into with Company, (B) directly~~ obligation unless this Agreement shall have first been terminated as set forth in Section 9.2 or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsSection 9.3.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Olympic Cascade Financial Corp)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Telescan and ~~Company~~ ZiaSun shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the joint proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company~~ Telescan stockholders at the ~~Company~~ Telescan Stockholders Meeting and the matters to be submitted to the ~~Parent~~ ZiaSun stockholders at the ~~Parent~~ ZiaSun Stockholders Meeting (such ~~joint~~ proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Holdco shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 ~~(of which the Joint Proxy Statement/Prospectus shall be a part)~~ with respect to the issuance of ~~Parent~~ Holdco Common Stock in the ~~Merger~~ Mergers (such Form S-4, and any amendments or supplements thereto, the “"Form S-4”"). The Joint Proxy Statement/Prospectus will be included as a prospectus in and will constitute a part of the Form S-4 as Holdco's prospectus. Each of ~~Parent~~ Telescan and ~~Company shall:~~ ZiaSun shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the ~~Merger~~ Mergers and the ~~other~~ transactions contemplated hereby, . Telescan and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ ZiaSun shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other ~~party~~ with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both parties, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided ~~that, in each case of (A) and (B), neither~~ that with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. Telescan will use reasonable best efforts to cause the Joint Proxy Statements/Prospectus to be mailed to Telescan's stockholders, and ZiaSun will use reasonable best efforts to cause the Joint Proxy Statement/~~and~~ Prospectus to be mailed to ZiaSun's stockholders, in each case as promptly as practicable after the Form S-4 ~~to comply as to form in all material respects with the requirements of the Exchange Act and~~ is declared effective under the Securities Act~~, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty~~ . Holdco shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Mergers and each ~~party~~ of ZiaSun and Telescan shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Holdco Common Stock issuable in connection with the ~~Merger~~ Mergers for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~Telescan or ZiaSun, or any of their respective affiliates, officers or directors, should be discovered by Telescan or ZiaSun which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Telescan and ~~Parent. Company~~ ZiaSun. (b) ZiaSun shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable, and in any event within 45 days, following the~~ on a date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”) for the purpose of obtaining the Bye-Law Vote and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote determined in accordance with ~~applicable legal requirements~~ the mutual agreement of ZiaSun and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective Telescan (the ~~“Parent~~ "ZiaSun Stockholders Meeting”") for the purpose of obtaining the Required ~~Parent~~ ZiaSun Vote ~~and, subject~~ with respect to ~~Section 5.4, (i) Parent~~ the transactions contemplated by this Agreement and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the adoption of this Agreement by the Required ~~Parent Vote in accordance with applicable legal requirements~~ ZiaSun Vote; and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of ~~Parent~~ ZiaSun shall recommend adoption of this Agreement by the stockholders of ZiaSun to the effect as set forth in Section 4.2(f) (the "ZiaSun Recommendation"), and shall not, unless Telescan makes a Change ~~of Parent~~ in the Telescan Recommendation, ~~Parent shall~~(x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Telescan such recommendation or (y) take any action or make any statement (other than any action described in the foregoing clause (x)) in connection with the ZiaSun Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the ZiaSun Recommendation"); provided, however, any action or statement under clause (y) will not be deemed a Change in the ZiaSun Recommendation provided (I) such action or statement is taken or made pursuant to advice from Jones, Waldo, Holbrook & McDonough, counsel to ZiaSun, to the effect that such acxxxx xx staxxxxxx xx required by applicable law, (II) if a ZiaSun Public Proposal (as defined in Section 8.2(b)) has been made and not rescinded, such action or statement shall not relate to such ZiaSun Public Proposal other than any factual statement required by any regulatory authority (including the SEC) and shall ~~cause its subsidiaries to, Vote all Company Common Shares held by it~~ in any event include a rejection of such ZiaSun Public Proposal and (III) such action or ~~its subsidiaries as follows: in favor of approval and adoption~~ statement also includes a reaffirmation of the ~~Bye-Law Amendments~~ ZiaSun Board of Directors' approval of the Mergers and the other transactions contemplated hereby and recommendation to the ZiaSun stockholders to adopt this Agreement; provided further, however, that the Board of Directors of ZiaSun may make a Change in the ZiaSun Recommendation pursuant to Section 6.5. Notwithstanding any Change in the ZiaSun Recommendation, this Agreement shall be submitted to the stockholders of ZiaSun at the ZiaSun Stockholders Meeting for the purpose of adopting this Agreement and ~~the transactions contemplated hereby, including the Merger, in favor of any other matter intended~~ nothing contained herein shall be deemed to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting relieve ZiaSun of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsobligation.

Appears in 1 contract

Samples: Merger Agreement (Ziasun Technologies Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ AHP and ~~Company~~ Warner-Lambert shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC mutually ~~acceptable proxy materials~~ acceptabxx xxxxx xxxxxials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ AHP shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 with respect to the issuance of AHP Common Stock in the Merger (the "Form S-4"). The Joint Proxy Statement/Prospectus will be included in and will constitute a part of ~~which~~ the Form S-4 as AHP's prospectus. The Form S-4 and the Joint Proxy Statement/Prospectus shall ~~be a part)~~ comply as to form in all material respects with ~~respect to~~ the ~~issuance~~ applicable provisions of ~~Parent Common Stock in~~ the ~~Merger (such Form S-4,~~ Securities Act and ~~any amendments or supplements thereto,~~ the ~~“Form S-4”)~~Exchange Act and the rules and regulations thereunder. Each of ~~Parent~~ AHP and ~~Company shall:~~ Warner-Lambert shall use ~~commercially~~ reasonable best efforts to have the ~~Joint Proxy Statement/cleared~~ Form S-0 xxxxxxxx xxxective by the SEC and ~~the Form S-4 declared effective by the SEC,~~ to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. AHP and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Warner-Lambert shall, as promptly as practicable after receipt ~~thereof~~therexx, ~~provide the~~ xxxxxxx xxe other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . AHP will provide ~~the other party~~ Warner-Lambert with a reasonable opportunity to review and comment ~~on any amendment~~ ox xxx xxxxxxxxt or supplement to ~~the Joint Proxy Statement/and~~ the Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the other party~~ Warner-Lambert with a copy of all such filings made with the SEC. ~~None of~~ Noxxxxxxxxxxxxx any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both parties, at which approval shall not be unreasonably withheld or delayed; provided, that with respect to documents filed by a party which are incorporated by reference in the ~~date~~ Form S-4 or Joint Proxy Statement/Prospectus, this right of ~~mailing~~ approval shall apply only with respect to ~~stockholders~~ information relating to the other party or its business, financial condition or results of operations; and ~~at the times of the meetings of stockholders to be held~~ provided, further, that AHP, in connection with a Change in the ~~Merger~~AHP Recommendation, ~~contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein~~and Warner-Lambert, in ~~light~~ connection with a Change in the Warner-Lambert Rexxxxxxxxxxxx, may amend or supplement the Joint Proxx Xxxxxxxxx/Xrospectus or Form S-4 (including by incorporation by reference) pursuant to a Qualifying Amendment (as defined below)to effect such a Change, and in such event, this right of ~~the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party~~ approval shall ~~be responsible or liable for any statements made or incorporated by reference therein based on~~ apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein; cause~~ its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors' deliberations and conclusions to be accurately described. A "Qualifying Amendment" means an amendment or supplement to the Joint Proxy Statement/~~and the~~ Prospectus or Form S-4 (including by incorporation by reference) to ~~comply as to form~~ the extent it contains (i) a Change in ~~all material respects with~~ the ~~requirements of~~ AHP Recommendation or a Change in the ~~Exchange Act and the Securities Act,~~ Warner-Lambert Recommendation (as the case may be), ~~and the rules and regulations~~ (ii) a statement xx xxx xxxxxxs of the ~~SEC thereunder, except that no representation~~ Board of Directors of AHP or ~~warranty shall be made by either~~ Warner-Lambert (as the case may be) for making such ~~party with respect~~ Change in the AHX Xxxxxxxxxxxxon or Change in the Warner-Lambert Recommendation (as the case may be) and (iii) additioxxx xxxxxxxxxxn reasonably related to ~~statements made or incorporated by reference therein based on information supplied by~~ the ~~other party for inclusion or incorporation by reference in~~ foregoing. AHP will use reasonable best efforts to cause the Joint Proxy ~~Statement~~Statements/or Prospectus to be mailed to AHP stockholders, and Warner-Lambert will use reasonable best efforts to cause the Joint Pxxxx Xxxxxxxxx/Prospectus to be mailed to Warner-Lambert's stockholders, in each case after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is dexxxxxx xxxxxxxxx under the Securities ~~Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to~~ Act. AHP shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Share Issuance and ~~each party~~ Warner-Lambert shall furnish all information concerning ~~it and the holders~~ Warner-Lambexx xxx xxx xxxders of ~~its capital stock~~ Warner-Lambert Common Stock as may ~~be reasonably~~ xx xxxxxxxxxx requested in ~~connection with any~~ connecxxxx xxxx xxx such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ AHP Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~AHP or Warner-Lambert, or any of their respective affiliates, officers or ~~directors~~dxxxxxxxx, xxxxld be discovered by AHP or Warner-Lambert which should be set forth in an amendment or ~~supplement to any of the~~ supplemexx xx xxx xx xhe Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ AHP and Parent. Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”) for the purpose of obtaining the ByeWarner-Law Vote and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsLambert.

Appears in 1 contract

Samples: Merger Agreement (Warner Lambert Co)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Purchaser Group and the Company shall cooperate in preparing and ~~each~~ shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy ~~statement/prospectus~~ statement relating to the matters to be submitted to the ~~shareholders of~~ Company stockholders at the Company Stockholders Meeting ~~and to the Parent stockholders at the Parent Stockholders Meeting~~ (as defined in Section 5.1(b)) (such ~~joint~~ proxy ~~statement/,~~ statement and any amendments or supplements thereto, the “~~Joint~~ Proxy Statement~~/Prospectus~~”), and ~~Parent~~ the Company shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the issuance of Parent Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). Each of Parent and Company shall: use ~~commercially~~ reasonable best efforts to have the ~~Joint~~ Proxy ~~Statement/~~Statement cleared by the ~~SEC and the Form S-4 declared effective by the~~ SEC, to keep the Form S-4 effective as long as is necessary to consummate the Merger and the other transactions contemplated hereby, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. ~~Parent and~~ The Company shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise the other party of any oral comments with respect to the ~~Joint~~ Proxy ~~Statement/or Form S-4~~ Statement received from the SEC; . The Company shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint~~ Proxy ~~Statement/and the Form S-4~~ Statement prior to filing such with the SEC, and ~~each party~~ the Company will provide the other party with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/or the Form S-4; and promptly notify the other party if If at any time prior to the Effective Time ~~it discovers~~ any information relating to either of the parties, or their respective affiliates, officers or directors, should be discovered by either party which should be set forth in an amendment or supplement to ~~any of~~ the ~~Form S-4 or the Joint~~ Proxy ~~Statement/Prospectus~~ Statement so that such ~~documents~~ document would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company and Parent.~~ the Company. (b) The Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days, following~~ practicable after the date ~~upon which the Form S-4 becomes effective~~ of this Agreement (together with any adjournments or postponements thereof, the “Company Stockholders Meeting”) for the purpose of obtaining the ~~Bye-Law Vote and the~~ Required Company Vote ~~and, subject~~ with respect to ~~Section 0, (i)~~ the transactions contemplated by this Agreement. The Board of Directors of the Company shall use ~~commercially~~ its reasonable best efforts to ~~solicit and secure~~ obtain from the ~~Bye-Law Vote and~~ Company stockholders the Required Company Vote in ~~accordance with applicable legal requirements~~ favor of adoption of this Agreement, and ~~(ii) the Special Committee and Board of Directors of Company~~ nothing contained in this Agreement shall ~~include the Bye-Law Recommendation and~~ be deemed to relieve the Company ~~Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting~~ of its obligation to submit this Agreement to its stockholders ~~as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”)~~ for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held a vote on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsthereof.

Appears in 1 contract

Samples: Merger Agreement (Walden Vc Ii L P)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Chase and ~~Company~~ Xxxxxx shall cooperate in preparing and ~~each~~ shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company~~ Xxxxxx stockholders at the ~~Company~~ Xxxxxx Stockholders Meeting (as defined in Section 5.1(b)) and to the ~~Parent~~ Chase stockholders at the ~~Parent~~ Chase Stockholders Meeting (as defined in Section 5.1(c)) (such joint proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Chase shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the issuance of ~~Parent~~ Chase Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “"Form S-4”"). Each of ~~Parent~~ Chase and ~~Company shall:~~ Xxxxxx shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. Chase and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Xxxxxx shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . Each party shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. ~~None~~ Notwithstanding any other provision herein to the contrary (but subject to the rights of ~~the information supplied~~ each of Xxxxxx and Chase to make a Change in Recommendation in accordance with Section 5.4(b)), no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of each party, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided ~~that, in each case of (A) and (B), neither~~ that with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ which are incorporated by reference ~~therein based on information supplied by~~ in the ~~other party for inclusion~~ Form S-4 or ~~incorporation by reference therein; cause the~~ Joint Proxy Statement/~~and the Form S-4 to comply as to form in all material respects with the requirements~~ Prospectus, this right of ~~the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty~~ approval shall ~~be made by either such party~~ apply only with respect to ~~statements made or incorporated by reference therein based on~~ information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference in the Joint Proxy Statement/~~its business, financial condition or ~~Form S-4~~results of operations. ~~Parent and Company~~ Chase shall ~~make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder;~~ use ~~commercially~~ its reasonable best efforts to take any action required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Chase Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to either of the parties, or their respective affiliates, officers or directors, should be discovered by either party which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Xxxxxx and ~~Parent. Company~~ Xxxxx. (b) Xxxxxx shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the ~~“Company~~ "Xxxxxx Stockholders Meeting”") for the purpose of obtaining the ~~Bye-Law~~ Required Xxxxxx Vote ~~and~~ with respect to the ~~Required Company Vote~~ transactions contemplated by this Agreement and, ~~subject~~ unless it is permitted to make a Change in Xxxxxx Recommendation (as defined below) pursuant to Section 05.4(b), ~~(i) Company~~ shall use ~~commercially~~ all reasonable best efforts to solicit ~~and secure~~ the ~~Bye-Law Vote~~ adoption of this Agreement by the Required Xxxxxx Vote; and the ~~Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Board of Directors of ~~Company~~ Xxxxxx shall ~~include~~ recommend adoption of this Agreement by the ~~Bye-Law Recommendation~~ stockholders of Xxxxxx to the effect as set forth in Section 3.1(n) (the "Xxxxxx Recommendation") and shall not (x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Chase such recommendation or (y) take any other action or make any other statement in connection with the ~~Company Recommendation~~ Xxxxxx Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in Xxxxxx Recommendation"), except as and to the ~~Joint Proxy Statement/Prospectus~~extent expressly permitted by Section 5.4(b). ~~Parent~~ Notwithstanding any Change in Xxxxxx Recommendation, this Agreement shall be submitted to the stockholders of Xxxxxx at the Xxxxxx Stockholders Meeting for the purpose of adopting this Agreement and nothing contained herein shall be deemed to relieve Xxxxxx of such obligation. (c) Chase shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the ~~“Parent~~ "Chase Stockholders Meeting”") for the purpose of obtaining the Required ~~Parent~~ Chase Vote with respect to the transactions contemplated by this Agreement and, ~~subject~~ unless it is permitted to make a Change in Chase Recommendation (as defined below) pursuant to Section ~~5.4~~5.4(b), ~~(i) Parent~~ shall use ~~commercially~~ all reasonable best efforts to solicit ~~and secure~~ the adoption of this Agreement by the Required ~~Parent Vote in accordance with applicable legal requirements~~ Chase Vote; and ~~(ii)~~ the ~~Special Committee and~~ Board of Directors of ~~Parent~~ Chase shall ~~include~~ recommend adoption of this Agreement by the ~~Parent Recommendation~~ stockholders of Chase to the effect as set forth in Section 3.2(n) (the ~~Joint Proxy Statement/Prospectus~~"Chase Recommendation") and shall not (x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Xxxxxx such recommendation or (y) take any other action or make any other statement in connection with the Chase Stockholders Meeting inconsistent with such recommendation (a "Change in Chase Recommendation"), except as and to the extent expressly permitted by Section 5.4(b). ~~Company~~ Notwithstanding any Change in Chase Recommendation, this Agreement shall be submitted to the stockholders of Chase at the Chase Stockholders Meeting for the purpose of adopting this Agreement and ~~Parent~~ nothing contained herein shall be deemed to relieve Chase of such obligation. (d) Xxxxxx and Xxxxx shall each use their ~~commercially~~ reasonable best efforts to cause the ~~Company~~ Xxxxxx Stockholders Meeting and the ~~Parent~~ Chase Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 1 contract

Samples: Merger Agreement (Morgan J P & Co Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As ~~promptly~~ soon as ~~reasonably~~ practicable following the date ~~hereof~~of this Agreement, ~~Parent and~~ the Company shall ~~cooperate~~ prepare and use its reasonable best efforts to, by July 7, 2006, in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/any event by July 10, ~~and any amendments or supplements thereto~~2007, ~~the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and~~ file with the SEC ~~a registration statement on Form S-4 (of which~~ the ~~Joint~~ Proxy Statement~~/Prospectus~~ . Parent, Merger Sub and the Company will cooperate with each other in the preparation of the Proxy Statement; without limiting the generality of the foregoing, Parent and Merger Sub, on the one hand, and the Company, on the other hand, will furnish to each other the information relating to the party furnishing such information required by the Exchange Act to be set forth in the Proxy Statement, and Company and its counsel shall be ~~a part) with respect to~~ given the issuance of Parent Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). Each of Parent and Company shall: use commercially reasonable efforts to have the Joint Proxy Statement/cleared by the SEC and the Form S-4 declared effective by the SEC, to keep the Form S-4 effective as long as is necessary to consummate the Merger and the other transactions contemplated hereby, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/or Form S-4 received from the SEC; cooperate and provide the other party with a reasonable opportunity to review and comment on the Proxy Statement prior to the filing thereof with the SEC. The Company agrees to use its reasonable best efforts, after consultation with the other parties hereto, to respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to its stockholders as promptly as practicable. No filing of, or amendment or supplement (including by incorporation by reference) to, or correspondence to the SEC or its staff with respect to the Proxy Statement will be made by the Company, without the approval of Parent, which approval shall not be unreasonably withheld or delayed; provided that with respect to documents filed by a party which are incorporated by reference in the Proxy Statement, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, or this Agreement or the transactions contemplated hereby; provided, further, that the Company, in connection with a Change in the Company Recommendation (as defined in Section 5.8(a)) or a Non-Takeover-Related Change of Recommendation (as defined in Section 5.1(d)), may amend or supplement the Proxy Statement (including by incorporation by reference) pursuant to a Qualifying Amendment (as defined below) to disclose such a change, and in such event, this right of approval shall apply only with respect to information relating to this Agreement, the transactions contemplated hereby, or the other party or its business, financial condition or results of operations. A "Qualifying Amendment" means an amendment or supplement to the ~~Joint~~ Proxy ~~Statement/and~~ Statement (including by incorporation by reference) to the ~~Form S-4 prior to filing such with~~ extent it contains (i) a Change in the ~~SEC~~Company Recommendation or a Non-Takeover-Related Change of Recommendation, ~~and each party will provide the other party with~~ (ii) a ~~copy of all such filings made with the SEC. None~~ statement of the ~~information supplied or to be supplied by~~ reasons of the Board of Directors of the Company ~~or Parent~~ for ~~inclusion or incorporation by reference~~ making such Change in the ~~(A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement~~ Company Recommendation or Non-Takeover-Related Change of ~~a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading,~~ Recommendation and (Biii) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on additional information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect reasonably related to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; foregoing. The Company will advise ~~the other party,~~ Parent promptly after it receives notice ~~thereof,~~ of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the ~~Joint~~ Proxy ~~Statement/~~Statement or comments thereon and responses thereto or requests by the ~~Form S-4; and promptly notify the other party if~~ SEC for additional information. If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of~~ the ~~parties~~Company or Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that any of ~~the Form S-4 or the Joint Proxy Statement/Prospectus so that~~ such documents would not include 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 and~~misleading, to the ~~extent required by law, rules or regulations,~~ party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC ~~and~~ and, to the extent required by law, disseminated to the stockholders of Company and Parent. Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”) for the purpose of obtaining the Bye-Law Vote and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 1 contract

Samples: Merger Agreement (Western Gas Resources Inc)

Preparation of Proxy Statement; Stockholders Meetings. As (a) Parent and the Company shall cooperate in preparing, and as promptly as reasonably practicable following the date hereof, ~~Parent and Company shall cooperate in preparing and each shall cause to be filed with~~ file the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus ~~shall be a part) with respect to the issuance of Parent Common Stock in the Merger (such~~ and Form S-4~~, and any amendments or supplements thereto, the “Form S-4”)~~. ~~Each of Parent and Company shall: use commercially reasonable efforts to have the Joint~~ The Proxy Statement/~~cleared by~~ Prospectus will be included in and will constitute a part of the ~~SEC~~ Form S-4. The Company will cause the Proxy Statement/Prospectus to be mailed to the Company’s stockholders as soon as reasonably practicable after the Form S-4 is declared effective under the Securities Act. Parent shall use reasonable best efforts, and the Company shall cooperate with Parent, to have the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective ~~as long as is necessary~~ through the Closing in order to consummate the Merger and the ~~other~~ transactions contemplated hereby. Parent shall also take any action required to be taken under any applicable state securities laws in connection with the issuance and reservation of Parent Shares in the Merger, and ~~to mail~~ the ~~Joint Proxy Statement/Prospectus to their respective stockholders~~ Company shall furnish all information concerning the Company and the holders of Company Shares, or holders of a beneficial interest therein, as ~~promptly as practicable after~~ may be reasonably requested in connection with any such action. Each of Parent or the ~~Form S-4 is declared effective. Parent and~~ Company shall, as promptly as practicable after receipt thereof, provide the other ~~party~~ parties with copies of any written ~~comments~~ comments, and advise ~~the~~ each other ~~party~~ of any oral ~~comments~~ comments, with respect to the ~~Joint~~ Proxy Statement/Prospectus or Form S-4 received from the SEC; . Parent and the Company shall cooperate and provide ~~the~~ each other ~~party~~ with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint~~ Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact~~ or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made ~~by either such party with respect to statements made~~ without the approval of both the Company and Parent, which approval shall not be unreasonably withheld, conditioned or ~~incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4~~delayed. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; advise the other partyIf, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/or the Form S-4; and promptly notify the other party if at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of~~ Parent or the ~~parties~~Company, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Parent or the Company and such information should be set forth in an amendment or supplement to any of the Form S-4 or the ~~Joint~~ Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of the Company ~~and Parent.~~ in accordance with applicable Law. (b) The Company shall duly take all lawful action to call, give notice of, convene and hold ~~a meeting of its stockholders~~ the Company Stockholders Meeting as ~~promptly~~ soon as ~~practicable, and in any event within 45 days,~~ practicable following the ~~date upon which~~ declaration of effectiveness of the Form S-4 ~~becomes effective (~~by the ~~“Company Stockholders Meeting”)~~ SEC for the purpose of obtaining the ~~Bye-~~Company Stockholder Approval. The Company shall not postpone or adjourn the Company Stockholders Meeting except to the extent required by applicable Law ~~Vote~~ or to solicit additional proxies and votes in favor of adoption of this Agreement if sufficient votes to constitute the ~~Required~~ Company ~~Vote~~ Stockholder Approval have not been obtained. The record date for the Company Stockholders Meeting shall be determined by the Company with prior consultation with Parent. (c) The Company Board shall, except in the case of a Change in Board Recommendation made in accordance with the terms of this Agreement, recommend the adoption of this Agreement by the Company stockholders to the effect as set forth in Section 3.3, and, subject to Section 05.3, ~~(i) Company~~ shall use ~~commercially~~ reasonable best efforts to solicit ~~and secure~~ the ~~Bye-Law Vote and the Required~~ Company ~~Vote~~ Stockholder Approval. Notwithstanding any Change in Board Recommendation pursuant to Section 5.3, unless this Agreement is otherwise terminated in accordance with ~~applicable legal requirements and (ii)~~ its terms, this Agreement shall be submitted to the ~~Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and~~ Company’s stockholders at the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders ~~Meeting”)~~ Meeting for the purpose of obtaining the ~~Required Parent Vote and~~Company Stockholder Approval, ~~subject~~ and nothing contained herein shall be deemed to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause relieve the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsobligation.

Appears in 1 contract

Samples: Merger Agreement (Ascena Retail Group, Inc.)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Pfizer and ~~Company~~ Xxxxxx-Xxxxxxx shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC mutually acceptable proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Pfizer shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 with respect to the issuance of Pfizer Common Stock in the Merger (the "Form S-4"). The Joint Proxy Statement/Prospectus will be included in and will constitute a part of ~~which~~ the Form S-4 as Pfizer's prospectus. The Form S-4 and the Joint Proxy Statement/Prospectus shall ~~be a part)~~ comply as to form in all material respects with ~~respect to~~ the ~~issuance~~ applicable provisions of ~~Parent Common Stock in~~ the ~~Merger (such Form S-4,~~ Securities Act and ~~any amendments or supplements thereto,~~ the ~~“Form S-4”)~~Exchange Act and the rules and regulations thereunder. Each of ~~Parent~~ Pfizer and ~~Company shall:~~ Xxxxxx- Xxxxxxx shall use ~~commercially~~ reasonable best efforts to have ~~the Joint Proxy Statement/cleared by the SEC and~~ the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. Pfizer and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Xxxxxx-Xxxxxxx shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . Pfizer will provide ~~the other party~~ Xxxxxx-Xxxxxxx with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint Proxy Statement/and the~~ Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the other party~~ Xxxxxx-Xxxxxxx with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both parties, at which approval shall not be unreasonably withheld or delayed; provided, that with respect to documents filed by a party which are incorporated by reference in the ~~date~~ Form S-4 or Joint Proxy Statement/Prospectus, this right of ~~mailing~~ approval shall apply only with respect to ~~stockholders~~ information relating to the other party or its business, financial condition or results of operations; and ~~at the times of the meetings of stockholders to be held~~ provided, further, that Pfizer, in connection with a Change in the ~~Merger~~Pfizer Recommendation, ~~contain any untrue~~ and Xxxxxx-Xxxxxxx, in connection with a Change in the Xxxxxx-Xxxxxxx Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by reference) pursuant to a Qualifying Amendment (as defined below) to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors' deliberations and conclusions to be accurately described. A "Qualifying Amendment" means an amendment or supplement to the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by reference) to the extent it contains (i) a Change in the Pfizer Recommendation or a Change in the Xxxxxx-Xxxxxxx Recommendation (as the case may be), (ii) a statement of ~~a material fact or omit to state any material fact required to be stated therein or necessary in order to make~~ the ~~statements therein, in light~~ reasons of the ~~circumstances under which they were made, not misleading; provided that,~~ Board of Directors of Pfizer or Xxxxxx- Xxxxxxx (as the case may be) for making such Change in ~~each~~ the Pfizer Recommendation or Change in the Xxxxxx-Xxxxxxx Recommendation (as the case ~~of (A~~may be) and (B)iii) additional information reasonably related to the foregoing. Pfizer will use reasonable best efforts to cause the Joint Proxy Statements/Prospectus to be mailed to Pfizer stockholders, neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; and Xxxxxx-Xxxxxxx will use reasonable best efforts to cause the Joint Proxy Statement/~~and~~ Prospectus to be mailed to Xxxxxx-Xxxxxxx'x stockholders, in each case after the Form S-4 ~~to comply as to form in all material respects with the requirements of the Exchange Act and~~ is declared effective under the Securities Act~~, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty~~ . Pfizer shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Share Issuance and ~~each party~~ Xxxxxx- Xxxxxxx shall furnish all information concerning it Xxxxxx-Xxxxxxx and the holders of ~~its capital stock~~ Xxxxxx-Xxxxxxx Common Stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Pfizer Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~Pfizer or Xxxxxx-Xxxxxxx, or any of their respective affiliates, officers or directors, should be discovered by Pfizer or Xxxxxx-Xxxxxxx which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Pfizer and Parent. Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”) for the purpose of obtaining the ByeXxxxxx-Law Vote and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsXxxxxxx.

Appears in 1 contract

Samples: Merger Agreement (Warner Lambert Co)

Preparation of Proxy Statement; Stockholders Meetings. (i) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Kmart and ~~Company~~ Sears shall cooperate in preparing and ~~each~~ shall cause to be filed with the SEC mutually acceptable proxy materials ~~which~~ that shall constitute the proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company~~ Sears stockholders at the ~~Company~~ Sears Stockholders Meeting (as defined in Section 5.1(b)) and to the ~~Parent~~ Kmart stockholders at the ~~Parent~~ Kmart Stockholders Meeting (as defined in Section 5.1(c)) (such joint proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus”"), and ~~Parent~~ Holdco shall prepare, together with ~~Company~~Kmart and Sears, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the issuance of ~~Parent~~ Holdco Common Stock in the ~~Merger~~ Mergers (such Form S-4, and any amendments or supplements thereto, the “"Form S-4”"). . (ii) Each of ~~Parent~~ Holdco, Kmart and ~~Company shall:~~ Sears shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the SEC, to keep the Form S-4 effective as long as is necessary to consummate the ~~Merger~~ Mergers and the other transactions contemplated hereby, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. ~~Parent~~ Kmart and ~~Company~~ Sears shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . Each party shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy ~~Statement/~~Statement/ Prospectus and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party Holdco shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use ~~commercially~~ its reasonable best efforts to take any action required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Mergers and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . (iii) Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Holdco Common Stock issuable in connection with the ~~Merger~~ Mergers for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to either of the parties, or their respective affiliates, officers or directors, ~~which~~ should be discovered by either party that should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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~~ misleading, the party that discovers such information shall promptly notify the other party and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Sears and ~~Parent. Company~~ Kmart. (b) Sears shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the ~~“Company~~ "Sears Stockholders Meeting”") for the purpose of obtaining the ~~Bye-Law~~ Required Sears Vote ~~and~~ with respect to the ~~Required Company Vote~~ transactions contemplated by this Agreement and, ~~subject~~ unless it is permitted to make a Change in Sears Recommendation (as defined below) pursuant to Section 05.4(b), ~~(i) Company~~ shall use ~~commercially~~ reasonable best efforts to solicit ~~and secure~~ the ~~Bye-Law Vote~~ approval of its stockholders of the matters comprising the Required Sears Vote; and the ~~Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Board of Directors of ~~Company~~ Sears shall ~~include~~ recommend approval of the ~~Bye-Law Recommendation~~ matters comprising the Required Sears Vote by the stockholders of Sears to the effect as set forth in Section 3.1(m) (the "Sears Recommendation") and shall not (x) withdraw or modify (or propose to withdraw or modify) in any manner adverse to Kmart such recommendation or (y) take any other action or make any other statement in connection with the ~~Company Recommendation~~ Sears Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in Sears Recommendation"), except as and to the ~~Joint Proxy Statement/Prospectus~~extent expressly permitted by Section 5.4(b). ~~Parent~~ Notwithstanding any Change in Sears Recommendation, this Agreement shall be submitted to the stockholders of Sears at the Sears Stockholders Meeting for the purpose of approving the matters comprising the Required Sears Vote, and nothing contained herein shall be deemed to relieve Sears of such obligation. (c) Kmart shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the ~~“Parent~~ "Kmart Stockholders Meeting”" and, together with the Sears Stockholders Meeting, the "Required Stockholders Meetings") for the purpose of obtaining the Required ~~Parent~~ Kmart Vote with respect to the transactions contemplated by this Agreement and, ~~subject~~ unless it is permitted to make a Change in Kmart Recommendation (as defined below) pursuant to Section ~~5.4~~5.4(b), ~~(i) Parent~~ shall use ~~commercially~~ reasonable best efforts to solicit ~~and secure~~ the approval of its stockholders of the matters comprising the Required ~~Parent Vote in accordance with applicable legal requirements~~ Kmart Vote; and ~~(ii)~~ the ~~Special Committee and~~ Board of Directors of ~~Parent~~ Kmart shall ~~include~~ recommend approval of the ~~Parent Recommendation~~ matters comprising the Required Kmart Vote by the stockholders of Kmart to the effect as set forth in Section 3.2(m) (the ~~Joint Proxy Statement/Prospectus~~"Kmart Recommendation") and shall not (x) withdraw or modify (or propose to withdraw or modify) in any manner adverse to Sears such recommendation or (y) take any other action or make any other statement in connection with the Kmart Stockholders Meeting inconsistent with such recommendation (a "Change in Kmart Recommendation"), except as and to the extent expressly permitted by Section 5.4(b). ~~Company~~ Notwithstanding any Change in Kmart Recommendation, this Agreement shall be submitted to the stockholders of Kmart at the Kmart Stockholders Meeting for the purpose of approving the matters comprising the Required Kmart Vote, and ~~Parent~~ nothing contained herein shall be deemed to relieve Kmart of such obligation. (d) Sears and Kmart shall each use their ~~commercially~~ reasonable best efforts to cause the ~~Company~~ Sears Stockholders Meeting and the ~~Parent~~ Kmart Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 1 contract

Samples: Merger Agreement (Sears Roebuck & Co)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Valero and ~~Company~~ UDS shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/~~Prospectus”),~~ Prospectus and ~~Parent~~ Valero shall ~~prepare, together with Company,~~ prepare and file with the SEC ~~a registration statement on~~ the Form ~~S-4 (of which the~~ S-4. The Joint Proxy Statement/Prospectus ~~shall~~ will be included as a ~~part) with respect to~~ prospectus in and will constitute a part of the ~~issuance of Parent Common Stock in the Merger (such~~ Form ~~S-4, and any amendments or supplements thereto, the “Form S-4”)~~S-4 as Valero's prospectus. Each of ~~Parent~~ Valero and ~~Company shall:~~ UDS shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby, . Valero and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ UDS shall, as promptly as practicable after receipt thereof, provide ~~the~~ each other ~~party~~ with copies of any written ~~comments~~ comments, and advise ~~the~~ each other ~~party~~ of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both Valero and UDS, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. Valero will use reasonable best efforts to cause the Joint Proxy Statement/ Prospectus to be mailed to Valero stockholders, and UDS will use reasonable best efforts to cause the Joint Proxy Statement/~~and~~ Prospectus to be mailed to UDS stockholders, in each case, as promptly as practicable after the Form S-4 ~~to comply as to form in all material respects with the requirements of the Exchange Act and~~ is declared effective under the Securities Act~~, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such~~ . Each party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Valero Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of the parties~~Valero or UDS, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Valero or UDS and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party discovering such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Valero and ~~Parent. Company~~ UDS. (b) UDS shall duly take all lawful action to call, give notice of, convene and hold the UDS Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Valero and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”)~~ UDS for the purpose of obtaining the ~~Bye-Law Vote and the Required Company Vote~~ UDS Stockholder Approval and, subject to Section 06.5, ~~(i) Company~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ UDS Stockholder Approval. The Board of Directors of ~~Company~~ UDS shall, subject to the proper exercise of its fiduciary duties, recommend the adoption of the plan of merger contained in this Agreement by the stockholders of UDS to the effect as set forth in Section 4.1(p) (the "UDS Recommendation"), and shall ~~include the Bye-Law Recommendation and the Company Recommendation~~ not, unless Valero makes a Change in the ~~Joint Proxy Statement/Prospectus. Parent~~ Valero Recommendation, (x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Valero the UDS Recommendation or (y) take any action or make any statement in connection with the UDS Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the UDS Recommendation"); provided, however, that the Board of Directors of UDS may make a Change in the UDS Recommendation pursuant to Section 6.5 hereof. (c) Valero shall duly take all lawful action to call, give notice of, convene and hold the Valero Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Valero and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”)~~ UDS for the purpose of obtaining the ~~Required Parent Vote and, subject to Section 5.4, (i) Parent~~ Valero Stockholder Approval and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Valero Stockholder Approval. The Board of Directors of ~~Parent shall include~~ Valero shall, subject to the ~~Parent Recommendation~~ proper exercise of its fiduciary duties, recommend the adoption of the plan of merger contained in this Agreement by the stockholders of Valero to the effect set forth in Section 4.2(p) and the approval of the issuance of Valero Common Stock in the ~~Joint Proxy Statement/Prospectus. Company~~ Merger by the stockholders of Valero (the "Valero Recommendation"), and ~~Parent~~ shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent not, unless UDS makes a Change ~~of Parent~~ in the UDS Recommendation, ~~Parent shall~~(x) withdraw, ~~and shall cause its subsidiaries to~~modify or qualify (or propose to withdraw, ~~Vote all Company Common Shares held by it~~ modify or ~~its subsidiaries as follows:~~ qualify) in ~~favor of approval and adoption of~~ any manner adverse to UDS the ~~Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against~~ Valero Recommendation or (y) take any action or ~~agreement~~ make any statement in connection with the Valero Stockholders Meeting inconsistent with such recommendation (~~including any merger~~collectively, ~~amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for~~ a "Change in the ~~Merger~~Valero Recommendation")) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 1 contract

Samples: Merger Agreement (Valero Energy Corp/Tx)

Preparation of Proxy Statement; Stockholders Meetings. As promptly as reasonably practicable following the date hereof, ~~Parent~~ Pfizer and ~~Company~~ Xxxxxx-Xxxxxxx shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC mutually acceptable proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Pfizer shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 with respect to the issuance of Pfizer Common Stock in the Merger (the "Form S-4"). The Joint Proxy Statement/Prospectus will be included in and will constitute a part of ~~which~~ the Form S-4 as Pfizer's prospectus. The Form S-4 and the Joint Proxy Statement/Prospectus shall ~~be a part)~~ comply as to form in all material respects with ~~respect to~~ the ~~issuance~~ applicable provisions of ~~Parent Common Stock in~~ the ~~Merger (such Form S-4,~~ Securities Act and ~~any amendments or supplements thereto,~~ the ~~“Form S-4”)~~Exchange Act and the rules and regulations thereunder. Each of ~~Parent~~ Pfizer and ~~Company shall:~~ Xxxxxx-Xxxxxxx shall use ~~commercially~~ reasonable best efforts to have ~~the Joint Proxy Statement/cleared by the SEC and~~ the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. Pfizer and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Xxxxxx-Xxxxxxx shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . Pfizer will provide ~~the other party~~ Xxxxxx-Xxxxxxx with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint Proxy Statement/and the~~ Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the other party~~ Xxxxxx-Xxxxxxx with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both parties, at which approval shall not be unreasonably withheld or delayed; provided, that with respect to documents filed by a party which are incorporated by reference in the ~~date~~ Form S-4 or Joint Proxy Statement/Prospectus, this right of ~~mailing~~ approval shall apply only with respect to ~~stockholders~~ information relating to the other party or its business, financial condition or results of operations; and ~~at the times of the meetings of stockholders to be held~~ provided, further, that Pfizer, in connection with a Change in the ~~Merger~~Pfizer Recommendation, ~~contain any untrue~~ and Xxxxxx-Xxxxxxx, in connection with a Change in the Xxxxxx-Xxxxxxx Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by reference) pursuant to a Qualifying Amendment (as defined below) to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors' deliberations and conclusions to be accurately described. A "Qualifying Amendment" means an amendment or supplement to the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by reference) to the extent it contains (i) a Change in the Pfizer Recommendation or a Change in the Xxxxxx-Xxxxxxx Recommendation (as the case may be), (ii) a statement of ~~a material fact or omit to state any material fact required to be stated therein or necessary in order to make~~ the ~~statements therein, in light~~ reasons of the ~~circumstances under which they were made, not misleading; provided that,~~ Board of Directors of Pfizer or Xxxxxx-Xxxxxxx (as the case may be) for making such Change in ~~each~~ the Pfizer Recommendation or Change in the Xxxxxx-Xxxxxxx Recommendation (as the case ~~of (A~~may be) and (B)iii) additional information reasonably related to the foregoing. Pfizer will use reasonable best efforts to cause the Joint Proxy Statements/Prospectus to be mailed to Pfizer stockholders, neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; and Xxxxxx-Xxxxxxx will use reasonable best efforts to cause the Joint Proxy Statement/~~and~~ Prospectus to be mailed to Xxxxxx-Xxxxxxx'x stockholders, in each case after the Form S-4 ~~to comply as to form in all material respects with the requirements of the Exchange Act and~~ is declared effective under the Securities Act~~, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty~~ . Pfizer shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Share Issuance and ~~each party~~ Xxxxxx-Xxxxxxx shall furnish all information concerning it Xxxxxx-Xxxxxxx and the holders of ~~its capital stock~~ Xxxxxx-Xxxxxxx Common Stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Pfizer Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~Pfizer or Xxxxxx-Xxxxxxx, or any of their respective affiliates, officers or directors, should be discovered by Pfizer or Xxxxxx-Xxxxxxx which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Pfizer and Parent. Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”) for the purpose of obtaining the ByeXxxxxx-Law Vote and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsXxxxxxx.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Pfizer Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Globespan and ~~Company~~ Virata shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials ~~which~~ that shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus and Globespan shall ~~be a part)~~ prepare and file with ~~respect to~~ the ~~issuance of Parent Common Stock in~~ SEC the ~~Merger (such~~ Form S-4, . The Joint Proxy Statement/Prospectus will be included as a prospectus in and ~~any amendments or supplements thereto,~~ will constitute a part of the “Form ~~S-4”)~~S-4 as Globespan's prospectus. Each of ~~Parent~~ Globespan and ~~Company shall:~~ Virata shall use ~~commercially~~ reasonable commercial efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby, . Each of Globespan and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Virata shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise ~~the~~ each other ~~party~~ of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both Globespan and Virata, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed -------- by a party ~~shall be responsible or liable for any statements made or~~ hereto that are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or its business, financial condition or results of operations; and provided, further, that Globespan, in connection -------- ------- with a Change in the Globespan Recommendation, and Virata, in connection with a Change in the Virata Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by ~~reference therein;~~ reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors' deliberations and conclusions to be accurately described. Globespan will use reasonable commercial efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~Globespan stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ Virata will use reasonable commercial efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to Virata stockholders, in each case, as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each Act. Each party ~~shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action;~~ hereto will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Globespan Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of the parties~~Globespan or Virata, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Globespan or Virata and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Globespan and ~~Parent. Company~~ Virata. (b) Virata shall duly take all lawful action to call, give notice of, convene and hold the Virata Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Globespan and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”)~~ Virata for the purpose of obtaining the ~~Bye-Law Vote and the Required Company Vote~~ Virata Stockholder Approval and, subject to Section 06.5, ~~(i) Company~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Virata Stockholder Approval. The Board of Directors of ~~Company~~ Virata shall ~~include~~ recommend the ~~Bye-Law~~ approval of the plan of merger contained in this Agreement by the stockholders of Virata to the effect as set forth in Section 4.1(p) (the "Virata ------ Recommendation"), and shall not (i) withdraw, modify or qualify (or propose to -------------- withdraw, modify or qualify) in any manner adverse to Globespan such recommendation or (ii) take any action or make any statement in connection with the Virata Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the Virata Recommendation"); provided, however, that ----------------------------------- -------- ------- the Board of Directors of Virata may make a Change in the Virata Recommendation pursuant to Section 6.5 hereof. Notwithstanding any Change in the Virata Recommendation, this Agreement shall be submitted to the stockholders of Virata at the Virata Stockholders Meeting for the purpose of approving and adopting this Agreement and the ~~Company Recommendation in the Joint Proxy Statement/Prospectus. Parent~~ Merger and nothing contained herein shall be deemed to relieve Virata of such obligation. (c) Globespan shall duly take all lawful action to call, give notice of, convene and hold the Globespan Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Globespan and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”)~~ Virata for the purpose of obtaining the ~~Required Parent Vote~~ Globespan Stockholder Approval and, subject to Section ~~5.4~~6.5, ~~(i) Parent~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Globespan Stockholder Approval. The Board of Directors of ~~Parent~~ Globespan shall ~~include~~ recommend the ~~Parent Recommendation~~ approval of issuance of Globespan Common Stock in the ~~Joint Proxy Statement/Prospectus. Company~~ Merger by the stockholders of Globespan (the "Globespan Recommendation"), and ~~Parent~~ shall ~~each use their commercially reasonable efforts~~ not ------------------------ (i) withdraw, modify or qualify (or propose to ~~cause~~ withdraw, modify or qualify) in any manner adverse to Virata such recommendation or (ii) take any action or make any statement in connection with the ~~Company~~ Globespan Stockholders Meeting ~~and~~ inconsistent with such recommendation (collectively, a "Change in the ~~Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or~~ Globespan ----------------------- Recommendation"); provided, however, that the Board of Directors of ~~Parent makes~~ Globespan -------------- -------- ------- may make a Change ~~of Parent~~ in the Globespan Recommendation pursuant to Section 6.5 hereof. Notwithstanding any Change in the Globespan Recommendation, ~~Parent shall,~~ this Agreement shall be submitted to the stockholders of Globespan at the Globespan Stockholders Meeting for the purpose of approving and ~~shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and~~ adopting this Agreement and the ~~transactions contemplated hereby, including~~ Merger and the ~~Merger,~~ issuance of Globespan Common Stock in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger ~~or inhibit the timely consummation of the Merger, in each case, in any material respect,~~ and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent nothing contained herein shall ~~not, and shall cause its subsidiaries not~~ be deemed to ~~(A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting~~ relieve Globespan of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsobligation.

Appears in 1 contract

Samples: Merger Agreement (Globespan Inc/De)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Chase and ~~Company shall~~ Morgxx xxxll cooperate in preparing and ~~each~~ shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company~~ Morgxx xxxckholders at the ~~Company Stockholders~~ Morgxx Xxxckholders Meeting (as defined in Section 5.1(b)) and to the ~~Parent~~ Chase stockholders at the ~~Parent~~ Chase Stockholders Meeting (as defined in Section 5.1(c)) (such joint proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Chase shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the issuance of ~~Parent~~ Chase Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “"Form S-4”"). Each of ~~Parent~~ Chase and ~~Company shall:~~ Morgxx xxxll use ~~commercially~~ reasonable best 42 efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. Chase and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company shall~~Morgxx xxxll, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . Each party shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. ~~None~~ Notwithstanding any other provision herein to the contrary (but subject to the rights of ~~the information supplied~~ each of Morgxx xxx Chase to make a Change in Recommendation in accordance with Section 5.4(b)), no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of each party, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided ~~that, in each case of (A) and (B), neither~~ that with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ which are incorporated by reference ~~therein based on information supplied by~~ in the ~~other party for inclusion~~ Form S-4 or ~~incorporation by reference therein; cause the~~ Joint Proxy Statement/~~and the Form S-4 to comply as to form in all material respects with the requirements~~ Prospectus, this right of ~~the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty~~ approval shall ~~be made by either such party~~ apply only with respect to ~~statements made or incorporated by reference therein based on~~ information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference in the Joint Proxy Statement/~~its business, financial condition or ~~Form S-4~~results of operations. ~~Parent and Company~~ Chase shall ~~make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder;~~ use ~~commercially~~ its reasonable best efforts to take any action required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Chase Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to either of the parties, or their respective affiliates, officers or directors, should be discovered by either party which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Morgxx xxx Chasx. (b) Morgxx xxxll duly take all lawful action to call, give notice of, convene and ~~Parent~~hold a meeting of its stockholders as promptly as practicable following the date upon which the Form S-4 becomes effective (the "Morgxx Xxxckholders Meeting") for the purpose of obtaining the Required Morgxx Xxxe with respect to the transactions contemplated by this Agreement and, unless it is permitted to make a Change in Morgxx Xxxommendation (as defined below) pursuant to Section 5.4(b), shall use all reasonable best efforts to solicit the adoption of this Agreement by the Required Morgxx Xxxe; and the Board of Directors of Morgxx xxxll recommend adoption of this Agreement by the stockholders of Morgxx xx the effect as set forth in Section 3.1(n) (the "Morgxx Xxxommendation") and shall not (x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Chase such recommendation or (y) take any other action or make any other statement in connection with the Morgxx Xxxckholders Meeting inconsistent with such recommendation (collectively, a "Change 43 in Morgxx Xxxommendation"), except as and to the extent expressly permitted by Section 5.4(b). ~~Company~~ Notwithstanding any Change in Morgxx Xxxommendation, this Agreement shall be submitted to the stockholders of Morgxx xx the Morgxx Xxxckholders Meeting for the purpose of adopting this Agreement and nothing contained herein shall be deemed to relieve Morgxx xx such obligation. (c) Chase shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the ~~“Company~~ "Chase Stockholders Meeting”) for the purpose of obtaining the Bye-Law Vote and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”") for the purpose of obtaining the Required ~~Parent~~ Chase Vote with respect to the transactions contemplated by this Agreement and, ~~subject~~ unless it is permitted to make a Change in Chase Recommendation (as defined below) pursuant to Section ~~5.4~~5.4(b), ~~(i) Parent~~ shall use ~~commercially~~ all reasonable best efforts to solicit ~~and secure~~ the adoption of this Agreement by the Required ~~Parent Vote in accordance with applicable legal requirements~~ Chase Vote; and ~~(ii)~~ the ~~Special Committee and~~ Board of Directors of ~~Parent~~ Chase shall ~~include~~ recommend adoption of this Agreement by the ~~Parent Recommendation~~ stockholders of Chase to the effect as set forth in Section 3.2(n) (the ~~Joint Proxy Statement/Prospectus~~"Chase Recommendation") and shall not (x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Morgxx xxxh recommendation or (y) take any other action or make any other statement in connection with the Chase Stockholders Meeting inconsistent with such recommendation (a "Change in Chase Recommendation"), except as and to the extent expressly permitted by Section 5.4(b). ~~Company~~ Notwithstanding any Change in Chase Recommendation, this Agreement shall be submitted to the stockholders of Chase at the Chase Stockholders Meeting for the purpose of adopting this Agreement and ~~Parent~~ nothing contained herein shall be deemed to relieve Chase of such obligation. (d) Morgxx xxx Chasx xxxll each use their ~~commercially~~ reasonable best efforts to cause the ~~Company Stockholders~~ Morgxx Xxxckholders Meeting and the ~~Parent~~ Chase Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 1 contract

Samples: Merger Agreement (Chase Manhattan Corp /De/)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as ~~reasonably~~ practicable following the date hereof, ~~Parent~~ Dianon and ~~Company~~ UroCor shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC mutually acceptable proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Dianon shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 with respect to the issuance of Dianon Common Stock in the Merger (the "Form S-4"). The Joint Proxy Statement/Prospectus will be included in and will constitute a part of ~~which~~ the Form S-4 as Dianon's prospectus. The Form S-4 and the Joint Proxy Statement/Prospectus shall ~~be a part)~~ comply as to form in all material respects with ~~respect to~~ the ~~issuance~~ applicable provisions of ~~Parent Common Stock in~~ the ~~Merger (such Form S-4,~~ Securities Act and ~~any amendments or supplements thereto,~~ the ~~“Form S-4”)~~Exchange Act and the rules and regulations thereunder. Each of ~~Parent~~ Dianon and ~~Company shall:~~ UroCor shall use ~~commercially~~ reasonable efforts to have ~~the Joint Proxy Statement/cleared by the SEC and~~ the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. Dianon and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ UroCor shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . Dianon will provide ~~the other party~~ UroCor with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint Proxy Statement/and the~~ Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the other party~~ UroCor with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will, at~~ or the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party Form S-4 shall be ~~responsible~~ made without the approval of both parties, which approval shall not be unreasonably withheld or ~~liable for any statements made or~~ delayed; provided, that with respect to documents filed by a party which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. Dianon will use reasonable efforts to cause the Joint Proxy Statements/Prospectus to be mailed to Dianon stockholders, and UroCor will use reasonable efforts to cause the Joint Proxy Statement/~~and~~ Prospectus to be mailed to UroCor's stockholders, in each case after the Form S-4 ~~to comply as to form in all material respects with the requirements of the Exchange Act and~~ is declared effective under the Securities Act~~, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty~~ . Dianon shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Share Issuance and ~~each party~~ UroCor shall furnish all information concerning it UroCor and the holders of ~~its capital stock~~ UroCor Common Stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Dianon Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~Dianon or UroCor, or any of their respective affiliates, officers or directors, should be discovered by Dianon or UroCor which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Dianon and ~~Parent. Company~~ UroCor. (b) UroCor shall duly take (subject to compliance with the provisions of Section 3.2(e) (provided that UroCor shall have used reasonable efforts to ensure that such representations are true and correct)) all lawful action to call, give notice of, convene and hold a meeting of its stockholders on a date as ~~promptly~~ soon as ~~practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ reasonably practicable (the ~~“Company~~ "UroCor Stockholders Meeting”") for the purpose of obtaining the ~~Bye-Law Vote~~ required approval of its stockholders with respect to the transactions contemplated by this Agreement, including the Alternative Merger Structure, and shall take all lawful action to solicit the adoption of this Agreement, including the Alternative Merger Structure, by the requisite vote of its stockholders; and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of ~~Company~~ UroCor shall ~~include~~ recommend adoption of this Agreement, including the ~~Bye-Law Recommendation~~ Alternative Merger Structure, by the stockholders of UroCor to the effect as set forth in Section 3.2(f) (the "UroCor Recommendation"), and shall not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Dianon such recommendation or the ~~Company Recommendation~~ approval of the Merger or this Agreement or take any action or make any statement in connection with the UroCor Stockholders Meeting inconsistent with such recommendation or approval (collectively, a "Change in the UroCor Recommendation"); provided the foregoing shall not prohibit accurate disclosure (and such disclosure shall not be deemed to be a Change in the UroCor Recommendation) of factual information regarding the business, financial condition or results of operations of Dianon or UroCor or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal (provided, that the Board of Directors of UroCor does not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Dianon its recommendation) in the Form S-4 or the Joint Proxy Statement/~~Prospectus. Parent~~ Prospectus or otherwise, to the extent such information, facts, identity or terms is required to be disclosed under applicable law; and, provided further, that the Board of Directors of UroCor may make a Change in the UroCor Recommendation pursuant to Section 5.5 hereof. (c) Dianon shall duly take (subject to compliance with the provisions of Section 3.1(e) (provided that Dianon shall have used reasonable efforts to ensure that such representation is true and correct)) all lawful action to call, give notice of, convene and hold a meeting of its stockholders on a date as ~~promptly~~ soon as ~~practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ reasonably practicable (the ~~“Parent~~ "Dianon Stockholders Meeting”") for the purpose of obtaining the ~~Required Parent Vote and~~Dianon Stockholder Approvals. (d) For purposes of this Agreement, ~~subject~~ a Change in the UroCor Recommendation shall be deemed to ~~Section 5.4~~include, ~~(i) Parent shall use commercially reasonable efforts to solicit and secure~~ without limitation, a recommendation by the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ UroCor Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement third party Acquisition Proposal with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsUroCor.

Appears in 1 contract

Samples: Merger Agreement (Dianon Systems Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, Parent and the Company shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials ~~which~~ that shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus and Parent shall ~~be a part)~~ prepare and file with ~~respect to~~ the ~~issuance of Parent Common Stock in~~ SEC the ~~Merger (such~~ Form S-4, . The Joint Proxy Statement/Prospectus will be included as a prospectus in and ~~any amendments or supplements thereto,~~ will constitute a part of the “Form ~~S-4”)~~S-4 as Parent's prospectus. Each of Parent and the Company ~~shall:~~ shall use ~~commercially~~ reasonable commercial efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby~~, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective~~. Each of Parent and the Company shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise ~~the~~ each other ~~party~~ of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both Parent and the Company, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ hereto that are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or its business, financial condition or results of operations; and provided, further, that Parent, in connection with a Change in the Parent Recommendation, and the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by ~~reference therein;~~ reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its board of directors' deliberations and conclusions to be accurately described. Parent will use reasonable commercial efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~Parent stockholders, and the ~~rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ Company will use reasonable commercial efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/~~or Form S-4. Parent and Company shall make any necessary filings with respect~~ Prospectus to be mailed to the ~~Merger~~ Company stockholders, in each case, as promptly as practicable after the Form S-4 is declared effective under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each Act. Each party ~~shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action;~~ hereto will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy ~~Statement/~~Statement/ Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of~~ Parent or the ~~parties~~Company, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Parent or the Company and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Parent and ~~Parent.~~ the Company. (b) The Company shall duly take all lawful action to call, give notice of, convene and hold ~~a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following~~ the ~~date upon which the Form S-4 becomes effective (the “~~Company Stockholders ~~Meeting”)~~ Meeting as soon as practicable on a date determined in accordance with the mutual agreement of Parent and the Company for the purpose of obtaining the ~~Bye-Law Vote and the Required~~ Company ~~Vote~~ Stockholder Approval and, subject to Section 06.4, shall take all lawful action to solicit the Company Stockholder Approval. The board of directors of the Company shall recommend the approval of the plan of merger contained in this Agreement by the stockholders of the Company to the effect as set forth in Section 4.3 (the "Company Recommendation"), and shall not (i) ~~Company shall use commercially reasonable efforts~~ withdraw, modify or qualify (or propose to ~~solicit and secure the Bye-Law Vote and the Required Company Vote~~ withdraw, modify or qualify) in ~~accordance with applicable legal requirements and~~ any manner adverse to Parent such recommendation or (ii) take any action or make any statement in connection with the ~~Special Committee and~~ Company Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the Company Recommendation"); provided, however, that the Board of Directors of the Company ~~shall include the Bye-Law Recommendation and~~ may make a Change in the Company Recommendation pursuant to Section 6.4 hereof. Notwithstanding any Change in the ~~Joint Proxy Statement/Prospectus.~~ Company Recommendation, this Agreement shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving and adopting this Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation unless this Agreement shall have first been terminated as set forth in Section 9.2 or Section 9.3. (c) Parent shall duly take all lawful action to call, give notice of, convene and hold ~~a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following~~ the ~~date upon which the Form S-4 becomes effective (the “~~Parent Stockholders ~~Meeting”)~~ Meeting as soon as practicable on a date determined in accordance with the mutual agreement of Parent and the Company for the purpose of obtaining the ~~Required~~ Parent ~~Vote~~ Stockholder Approval and, subject to Section ~~5.4~~5.3, ~~(i) Parent~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Required~~ Parent ~~Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Stockholder Approval. The Board of Directors of Parent shall ~~include~~ recommend the approval of this Agreement and the issuance of Parent ~~Recommendation~~ Common Stock in the ~~Joint Proxy Statement/Prospectus. Company~~ Merger by the stockholders of Parent as set forth in Section 5.3 (the "Parent Recommendation"), and ~~Parent~~ shall ~~each use their commercially reasonable efforts~~ not (i) withdraw, modify or qualify (or propose to ~~cause~~ withdraw, modify or qualify) in any manner adverse to the Company ~~Stockholders Meeting and~~ such recommendation or (ii) take any action or make any statement in connection with the Parent Stockholders Meeting ~~to be held on~~ inconsistent with such recommendation (collectively, a "Change in the ~~same date. Unless Parent’s Special Committee or~~ Parent Recommendation"); provided, however, that the Board of Directors of Parent ~~makes~~ may make a Change of in the Parent Recommendation pursuant to Section 6.5 hereof. Notwithstanding any Change in the Parent Recommendation, this Agreement shall be submitted to the stockholders of Parent ~~shall,~~ at the Parent Stockholders Meeting for the purpose of approving and ~~shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and~~ adopting this Agreement and the ~~transactions contemplated hereby, including~~ Merger and the ~~Merger,~~ issuance of Parent Common Stock in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger ~~or inhibit the timely consummation of the Merger, in each case, in any material respect,~~ and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, nothing contained herein shall be deemed to relieve Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such ~~Company Common Shares other than agreements entered into with Company, (B) directly~~ obligation unless this Agreement shall have first been terminated as set forth in Section 9.2 or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsSection 9.3.

Appears in 1 contract

Samples: Merger Agreement (Datum Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ WAXS and ~~Company~~ STAR shall ~~cooperate~~ prepare (in ~~preparing~~ form and substance reasonably satisfactory to each ~~shall cause to be filed~~ of WAXS and STAR) and file with the SEC ~~mutually acceptable~~ proxy materials which shall constitute the joint proxy ~~statement/~~statement and prospectus ~~relating to~~ in connection with the ~~matters to be submitted to the shareholders of Company at the Company~~ WAXS Stockholders Meeting and to the ~~Parent stockholders at the Parent~~ STAR Stockholders Meeting (such ~~joint~~ proxy ~~statement/~~statement and prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ WAXS shall ~~prepare, together with Company,~~ prepare (in form and substance reasonably satisfactory to each of WAXS and STAR) and file ~~with the SEC~~ a registration statement on Form S-4 with respect to the issuance of WAXS Common Stock in the Merger (the "Registration Statement"). The Joint Proxy Statement/Prospectus will be included in and will constitute a part of ~~which~~ the Registration Statement as WAXS's prospectus. The Registration Statement and the Joint Proxy Statement/Prospectus shall ~~be a part)~~ comply as to form in all material respects with ~~respect to~~ the ~~issuance~~ applicable provisions of ~~Parent Common Stock in~~ the ~~Merger (such Form S-4,~~ Securities Act and ~~any amendments or supplements thereto,~~ the ~~“Form S-4”)~~Exchange Act and the rules and regulations thereunder. Each of ~~Parent~~ WAXS and ~~Company shall:~~ STAR shall use ~~commercially~~ reasonable efforts to have the ~~Joint Proxy Statement/cleared by the SEC and the Form S-4~~ Registration Statement declared effective by the ~~SEC,~~ SEC as promptly as reasonably practicable after filing with the SEC and to keep the ~~Form S-4~~ Registration Statement effective as long as is necessary to consummate the Merger and the ~~other transactions~~ actions contemplated ~~hereby,~~ thereby. WAXS and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ STAR shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/or Form S-4 received from the SEC; cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/or the Form S-4; and promptly notify the other party if at any time prior to the Effective Time it discovers any information relating to either of the parties, or their respective affiliates, officers or directors, which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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 and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of Company and Parent. Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”) for the purpose of obtaining the Bye-Law Vote and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.Proxy

Appears in 1 contract

Samples: Merger Agreement (World Access Inc /New/)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ but in no event more than 30 days of the date hereof, OLYMPIC and ~~Company~~ FMFK shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials ~~which~~ that shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus and FMFK shall ~~be a part)~~ prepare and file with ~~respect to~~ the ~~issuance of Parent Common Stock in~~ SEC the ~~Merger (such~~ Form S-4, . The Joint Proxy Statement/Prospectus will be included as a prospectus in and ~~any amendments or supplements thereto,~~ will constitute a part of the “Form ~~S-4”)~~S-4 as FMFK's prospectus. Each of ~~Parent~~ OLYMPIC and ~~Company shall:~~ FMFK shall use ~~commercially~~ reasonable commercial efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby, . Each of OLYMPIC and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ FMFK shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise ~~the~~ each other ~~party~~ of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both OLYMPIC and FMFK, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ hereto that are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or its business, financial condition or results of operations; and provided, further, that OLYMPIC, in connection with a Change in the OLYMPIC Recommendation, and FMFK, in connection with a Change in FMFK Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by ~~reference therein;~~ reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its board of directors' deliberations and conclusions to be accurately described. OLYMPIC will use reasonable commercial efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~OLYMPIC stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ FMFK will use reasonable commercial efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to FMFK stockholders, in each case, as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each Act. Each party ~~shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action;~~ hereto will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ FMFK Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy ~~Statement/~~Statement/ Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of the parties~~OLYMPIC or FMFK or MERGER SUB, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by OLYMPIC or FMFK and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ OLYMPIC and ~~Parent. Company~~ FMFK. (b) FMFK shall duly take all lawful action to call, give notice of, convene and hold FMFK Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ OLYMPIC and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”)~~ FMFK for the purpose of obtaining ~~the Bye-Law Vote and the Required Company Vote~~ FMFK Stockholder Approval and, subject to Section 06.3, ~~(i) Company~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit FMFK Stockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, FMFK may adjourn or postpone FMFK Stockholders Meeting to the extent necessary to ensure that any necessary supplement or amendment to the Joint Proxy Statement/Prospectus is provided to FMFK's stockholders in advance of a vote on the Merger and ~~secure~~ this Agreement or, if as of the ~~Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and~~ time for which FMFK Stockholders Meeting is originally scheduled (~~ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation~~ as set forth in the Joint Proxy Statement/Prospectus) there are insufficient shares of FMFK Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of FMFK Stockholders Meeting. ~~Parent~~ The Board of Directors of FMFK shall recommend the approval of the plan of merger contained in this Agreement by the stockholders of FMFK to the effect as set forth in Section 4.3 (the "FMFK Recommendation"), and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to OLYMPIC such recommendation or (ii) take any action or make any statement in connection with FMFK Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in FMFK Recommendation"); provided, however, that the Board of Directors of FMFK may make a Change in FMFK Recommendation pursuant to Section 6.3 hereof. Notwithstanding any Change in FMFK Recommendation, this Agreement shall be submitted to the stockholders of FMFK at FMFK Stockholders Meeting for the purpose of approving and adopting this Agreement and the Merger and nothing contained herein shall be deemed to relieve FMFK of such obligation unless this Agreement shall have first been terminated as set forth in Section 9.2 or Section 9.3. (c) OLYMPIC shall duly take all lawful action to call, give notice of, convene and hold OLYMPIC Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ OLYMPIC and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”)~~ FMFK for the purpose of obtaining ~~the Required Parent Vote~~ OLYMPIC Stockholder Approval and, subject to Section ~~5.4~~6.4, ~~(i) Parent~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit OLYMPIC Stockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, OLYMPIC may adjourn or postpone OLYMPIC Stockholders Meeting to the extent necessary to ensure that any necessary supplement or amendment to the Joint Proxy Statement/Prospectus is provided to OLYMPIC's shareholders in advance of a vote on the approval of the Merger, the adoption of the Agreement and ~~secure~~ the ~~Required Parent Vote~~ approval of the issuance of OLYMPIC Common Stock in ~~accordance with applicable legal requirements~~ the Merger and this Agreement or, if as of the time for which OLYMPIC Stockholders Meeting is originally scheduled (~~ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation~~ as set forth in the Joint Proxy Statement/Prospectus) there are insufficient shares of OLYMPIC Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of OLYMPIC Stockholders Meeting. ~~Company~~ The Board of Directors of OLYMPIC shall recommend the approval of this Agreement and ~~Parent~~ the Merger by the stockholders of OLYMPIC as set forth in Section 5.3 (the "OLYMPIC Recommendation"), and shall ~~each use their commercially reasonable efforts~~ not (i) withdraw, modify or qualify (or propose to ~~cause the Company~~ withdraw, modify or qualify) in any manner adverse to FMFK such recommendation or (ii) take any action or make any statement in connection with OLYMPIC Stockholders Meeting ~~and~~ inconsistent with such recommendation (collectively, a "Change in the ~~Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or~~ OLYMPIC Recommendation"); provided, however, that the Board of Directors of ~~Parent makes~~ OLYMPIC may make a Change ~~of Parent~~ in the OLYMPIC Recommendation pursuant to Section 6.4 hereof. Notwithstanding any Change in the OLYMPIC Recommendation, ~~Parent shall,~~ this Agreement shall be submitted to the stockholders of OLYMPIC at OLYMPIC Stockholders Meeting for the purpose of approving and ~~shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and~~ adopting this Agreement and the ~~transactions contemplated hereby, including the Merger, in favor of any other matter intended~~ Merger and nothing contained herein shall be deemed to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting relieve OLYMPIC of such ~~Company Common Shares other than agreements entered into with Company, (B) directly~~ obligation unless this Agreement shall have first been terminated as set forth in Section 9.2 or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsSection 9.3.

Appears in 1 contract

Samples: Agreement and Plan of Merger (First Montauk Financial Corp)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent and Company~~ each of the parties hereto shall cooperate in preparing and ~~each~~ shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company~~ Parkway stockholders at the ~~Company~~ Parkway Stockholders Meeting and to the ~~Parent~~ Cousins stockholders at the ~~Parent~~ Cousins Stockholders Meeting (such joint proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and ~~Parent~~ Cousins (and, if required, Merger Sub) shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Table of Contents Statement/Prospectus shall be a part) with respect to the ~~issuance of Parent Common~~ Cousins Stock ~~in the Merger~~ Issuance (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). Each of ~~Parent and Company shall:~~ the parties hereto shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. Parkway and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Cousins shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or the Form S-4 received from the SEC; . Each party shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither Each party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use ~~commercially~~ its reasonable best efforts to take any action required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Merger, and each party shall furnish all information concerning it and the holders of its capital stock or shares of common stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Parkway Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to either of the parties, or their respective affiliates, officers or directors, ~~which~~ should be discovered by either party, and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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~~ misleading, the party that discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Parkway and ~~Parent. Company~~ Cousins. (b) Parkway shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the “~~Company~~ Parkway Stockholders Meeting”) for the purpose of obtaining the ~~Bye-Law Vote and the~~ Parkway Required ~~Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote~~ Stockholders Vote. Unless a Change in Parkway Recommendation has occurred in accordance with ~~applicable legal requirements and (ii)~~ Section 5.4, the ~~Special Committee and~~ Board of Directors of ~~Company~~ Parkway shall ~~include~~ use its reasonable best efforts to obtain from the ~~Bye-Law~~ stockholders of Parkway the Parkway Required Stockholders Vote. Parkway covenants that, unless a Change in Parkway Recommendation has occurred in accordance with Section 5.4, Parkway will, through its Board of Directors, recommend to its stockholders approval of the Merger and ~~the Company Recommendation in~~ further covenants that the Joint Proxy Statement/~~Prospectus~~Prospectus and the Form S-4 will include such recommendation. ~~Parent~~ Notwithstanding the foregoing provisions of this Section 5.1(b), if, on a date for which the Parkway Stockholders Meeting is scheduled, Parkway has not received proxies representing a sufficient number of shares of Parkway Common Stock to obtain the Parkway Required Stockholders Vote, whether or not a quorum is present, Parkway shall have the right to make one or more successive postponements or adjournments of the Parkway Stockholders Meeting; provided that the Parkway Stockholders Meeting is not postponed or adjourned to a date that is more than thirty (30) days after the date for which the Parkway Stockholders Meeting was originally scheduled (excluding any adjournments or postponements required by applicable Law). Parkway agrees that, unless this Agreement shall have been terminated in accordance with Section 7.1, its obligations to hold the Parkway Stockholders Meeting pursuant to this Section 5.1(b) shall not be affected by the commencement, public proposal, public disclosure or communication to Parkway of any Acquisition Proposal or by any Change in Parkway Recommendation. (c) Cousins shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the “~~Parent~~ Cousins Stockholders Meeting”) for the purpose of obtaining the Cousins Required ~~Parent Vote and, subject to~~ Vote. Unless a Change in Cousins Recommendation has occurred in accordance with Section 5.4, ~~(i) Parent shall use commercially reasonable efforts to solicit and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Board of Directors of ~~Parent~~ Cousins shall ~~include~~ use its reasonable best efforts to obtain from the ~~Parent~~ stockholders of Cousins the Cousins Required Vote. Cousins covenants that, unless a Change in Cousins Recommendation has occurred in accordance with Section 5.4, Table of Contents Cousins will, through its Board of Directors, recommend to its stockholders approval of the Merger and further covenants that the Joint Proxy Statement/~~Prospectus~~Prospectus and the Form S-4 will include such recommendation. ~~Company and Parent~~ Notwithstanding the foregoing provisions of this Section 5.1(c), if, on a date for which the Cousins Stockholders Meeting is scheduled, Cousins has not received proxies representing a sufficient number of shares of Cousins Common Stock to obtain the Cousins Required Vote, whether or not a quorum is present, Cousins shall ~~each~~ have the right to make one or more successive postponements or adjournments of the Cousins Stockholders Meeting; provided that the Cousins Stockholders Meeting is not postponed or adjourned to a date that is more than thirty (30) days after the date for which the Cousins Stockholders Meeting was originally scheduled (excluding any adjournments or postponements required by applicable Law). Cousins agrees that, unless this Agreement shall have been terminated in accordance with Section 7.1, its obligations to hold the Cousins Stockholders Meeting pursuant to this Section 5.1(c) shall not be affected by the commencement, public proposal, public disclosure or communication to Cousins of any Acquisition Proposal or by any Change in Cousins Recommendation. (d) Each of the parties hereto shall use their ~~commercially~~ reasonable best efforts to cause the ~~Company~~ Parkway Stockholders Meeting and the ~~Parent~~ Cousins Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 1 contract

Samples: Merger Agreement (Parkway Properties Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As ----------------------------------------------------- promptly as reasonably practicable following the date hereof, ~~Parent~~ Phillips and ~~Company~~ Conoco shall cooperate in preparing and each shall ~~cause to be~~ caxxx xx xe filed with the SEC mutually acceptable proxy materials ~~which~~ that shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus and Phillips and Conoco shall ~~be a part)~~ prepare, and New Parent shall file with ~~respect to~~ xxx XXX, the ~~issuance of Parent Common Stock in the Merger (such~~ Form S-4, . The Joint Proxy Statement/Prospectus will be included as a prospectus in and ~~any amendments or supplements thereto,~~ will constitute a part of the “Form ~~S-4”)~~S-4 as New Parent's prospectus. Each of Phillips, Conoco and New Parent ~~and Company shall:~~ shall use ~~commercially~~ reasonable best efforts ~~to have~~ xx xxxx the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the ~~Merger~~ Mergers and the ~~other~~ transactions contemplated hereby. Each of Phillips, Conoco and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective.~~ New Parent ~~and Company~~ shall, as promptly as practicable ~~after receipt~~ xxxxx xxceipt thereof, provide the other ~~party~~ parties with copies of any written ~~comments~~ comments, and advise ~~the~~ each other ~~party~~ of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . Phillips, Conoco and New Parent shall cooperate and provide the ~~other party~~ otxxx xxxxies with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each ~~party~~ will provide ~~the~~ each other ~~party~~ parties with a copy of all such filings made with the SEC. ~~None~~ Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Joint Proxy Statement/Prospectus or the Form S-4 shall be made without the approval of ~~the information supplied or~~ both Phillips and Conoco, which approval shall not be unreasonably withxxxx xx delayed; provided that, with respect to ~~be supplied~~ documents filed by ~~Company or Parent for inclusion or incorporation~~ a party hereto that -------- are incorporated by reference in the ~~(A)~~ Form S-4 ~~will~~or Joint Proxy Statement/Prospectus, at this right of approval shall apply only with respect to information relating to the ~~time~~ other party or its business, financial condition or results of operations; and provided, further, that Phillips, in connection with -------- ------- a Change in the Phillips Recommendation, and Conoco, in connection with a Change ix xxx Xxnoco Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors' deliberations and conclusions to be accurately described. Phillips will use reasonable best efforts to cause the Joint Proxy Xxxxxxxnt/Prospectus to be mailed to Phillips stockholders, and Conoco will use reasonable best efforts xx xxxxe the Joint Proxy Statement/Prospectus to be mailed to Conoco stockholders, in each case, as promptly as practicable after the Form S-4 is ~~filed with the SEC and at the time it becomes~~ declared effective under the Securities Act. Each of Phillips, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, Conoco and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. New Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; will advise the other ~~party~~parties, ~~promptly after~~ proxxxxx xxter it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the New Parent Common Stock issuable in connection with the ~~Merger~~ Mergers for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of the parties~~Phillips or Conoco, or any of their respective affiliates, ~~officers~~ officerx xx xxxectors, is discovered by Phillips or ~~directors, which~~ Conoco and such information should be set forth in an ~~amendment~~ xxxxxxxxt or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Phillips and ~~Parent~~Conoco. (b) Conoco shall duly take all lxxxxx xxtion to call, give notice of, convene and hold the Conoco Stockholders Meeting as soon as practicable on a date determined in accordance with the mutual agreement of Phillips and Conoco for the purpose of obtaining the Conoco Stockhxxxxx Xxproval and, subject to Section 6.5 and Section 8.5, shall take all lawful action to solicit the Conoco Stockholder Approval. ~~Company~~ The Board of Directors of Conoco shall recommend the adoption of the plan of merger contained in this Agreement by the Conoco stockholders to the effect as set forth in Section 4.1(q) (the "Conoco ------ Recommendation"), and shall not, unless Phillips makes a Change in the Phillips -------------- Recommendatxxx, (x) withdraw, modify or quxxxxx (xr propose to withdraw, modify or qualify) in any manner adverse to Phillips the Conoco Recommendation or (ii) take any action or make xxx xxxtement in connection with the Conoco Stockholders Meeting inconsistent with the Conoco Recommendation (collectively, a "Change in the Conoco Recommendation"); provided, however, that ----------------------------------- -------- ------- Conoco and the Board of Directors of Conoco may take any action permitted under Section 6.5, 8.1(i) or 8.5. Notwithstanding any Change in the Conoco Recommendation pursuant to Section 6.5, this Agreement shall be submitted to the Conoco stockholders at the Conoco Stockholders Meeting for the purpose of obtaining the Conoco Stockholder Approval, and nothing contained herein shall be deemed to relieve Conoco of such obligation. (c) Phillips shall duly take all lawful action to call, give notice of, ~~convene~~ xxxxxxe and hold the Phillips Stockholders Meeting as soon as practicable on a ~~meeting~~ date detxxxxxxx in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Phillips and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”)~~ Conoco for the purpose of obtaining the ~~Bye-Law Vote and the Required Company Vote~~ Phillips Stocxxxxxxx Approval and, subject to Section 06.5 and Sectxxx 0.0, ~~(i) Company~~ shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to ~~call, give notice of, convene and hold a meeting~~ solicit the Phillips Stockholder Approval. The Board of ~~its~~ Directors of Phillips xxxxx xxcommend the adoption of the plan of merger contaixxx xx xhis Agreement by the Phillips stockholders to the effect as ~~promptly as practicable~~set forth in Section 4.2(q) (xxx "Xhillips Recommendation"), and ~~in any event within 45 days~~shall not, ~~following~~ unless Conoco makes a Chxxxx xx the ~~date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4~~----------------------- Conoco Recommendation, (i) ~~Parent shall use commercially reasonable efforts~~ withdraw, modify or qualify (or propose to ~~solicit and secure~~ withdraw, modify or qualify) in any manner adverse to Conoco the ~~Required Parent Vote in accordance with applicable legal requirements and~~ Phillips Recommendation or (ii) take any action or make any statemxxx xx xonnection with the ~~Special Committee and Board of Directors of Parent shall include~~ Phillips Stockholders Meeting inconsistent with the ~~Parent Recommendation~~ Phillips Recomxxxxxxxxn (collectively, a "Change in the ~~Joint Proxy Statement/Prospectus. Company~~ Phillips Rxxxxxxxxation"); provided, however, ------------------------------------- -------- ------- that Phillips and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of ~~Parent makes a~~ Phillips may take any actiox xxxxxxted under Section 6.5, 8.1(i) ox 0.0. Xotwithstanding any Change in the Phillips Recommendation pursuant to Section 6.5, this Agreement shxxx xx xubmitted to the Phillips stockholders at the Phillips Stockholders Meeting for the xxxxxxx of ~~Parent Recommendation, Parent shall~~obtaining the Phixxxxx Xxockholder Approval, and nothing contained herein shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended xx xxxxxd to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting relieve Phillips of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsobligation.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Phillips Petroleum Co)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Xxxxxxxx and ~~Company~~ Tosco shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/~~Prospectus”),~~ Prospectus and ~~Parent~~ Xxxxxxxx shall ~~prepare, together with Company,~~ prepare and file with the SEC ~~a registration statement on~~ the Form ~~S-4 (of which the~~ S-4. The Joint Proxy Statement/Prospectus ~~shall~~ will be included as a ~~part) with respect to~~ prospectus in and will constitute a part of the ~~issuance of Parent Common Stock in the Merger (such~~ Form ~~S-4, and any amendments or supplements thereto, the “Form S-4”)~~S-4 as Xxxxxxxx'x prospectus. Each of ~~Parent~~ Xxxxxxxx and ~~Company shall:~~ Xxxxx shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby, . Xxxxxxxx and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Tosco shall, as promptly as practicable after receipt thereof, provide ~~the~~ each other ~~party~~ with copies of any written ~~comments~~ comments, and advise ~~the~~ each other ~~party~~ of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both Xxxxxxxx and Xxxxx, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or its business, financial condition or results of operations; and provided, further, that Xxxxxxxx, in connection with a Change in the Xxxxxxxx Recommendation, and Tosco, in connection with a Change in the Tosco Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by ~~reference therein;~~ reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors' deliberations and conclusions to be accurately described. Xxxxxxxx will use reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~Xxxxxxxx stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ Tosco will use reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to Tosco stockholders, in each case, as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each Act. Each party ~~shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action;~~ will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Xxxxxxxx Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of the parties~~Xxxxxxxx or Tosco, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Xxxxxxxx or Tosco and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party discovering such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Xxxxxxxx and ~~Parent. Company~~ Xxxxx. (b) Tosco shall duly take all lawful action to call, give notice of, convene and hold the Tosco Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Xxxxxxxx and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”)~~ Xxxxx for the purpose of obtaining the ~~Bye-Law Vote~~ Tosco Stockholder Approval and ~~the Required Company Vote and, subject to Section 0, (i) Company~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Tosco Stockholder Approval. The Board of Directors of ~~Company~~ Tosco shall ~~include~~ recommend the ~~Bye-Law Recommendation~~ approval of the plan of merger contained in this Agreement by the stockholders of Tosco to the effect as set forth in Section 4.1(p) (the "Tosco Recommendation"), and ~~the Company Recommendation~~ shall not, unless Xxxxxxxx makes a Change in the ~~Joint Proxy Statement/Prospectus. Parent~~ Xxxxxxxx Recommendation, (x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Xxxxxxxx such recommendation or (y) take any action or make any statement in connection with the Tosco Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the Tosco Recommendation"); provided, however, that the Board of Directors of Tosco may make a Change in the Tosco Recommendation pursuant to Section 6.5 hereof. (c) Xxxxxxxx shall duly take all lawful action to call, give notice of, convene and hold the Xxxxxxxx Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Xxxxxxxx and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”)~~ Xxxxx for the purpose of obtaining the ~~Required Parent Vote and, subject to Section 5.4, (i) Parent~~ Xxxxxxxx Stockholder Approval and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Xxxxxxxx Stockholder Approval. The Board of Directors of ~~Parent~~ Xxxxxxxx shall ~~include~~ recommend the ~~Parent Recommendation~~ approval of issuance of Xxxxxxxx Common Stock in the ~~Joint Proxy Statement/Prospectus. Company~~ Merger by the stockholders of Xxxxxxxx (the "Xxxxxxxx Recommendation"), and ~~Parent~~ shall ~~each use their commercially reasonable efforts~~ not, unless Tosco makes a Change in the Tosco Recommendation, (x) withdraw, modify or qualify (or propose to ~~cause~~ withdraw, modify or qualify) in any manner adverse to Tosco such recommendation or (y) take any action or make any statement in connection with the ~~Company~~ Xxxxxxxx Stockholders Meeting ~~and~~ inconsistent with such recommendation (collectively, a "Change in the ~~Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or~~ Xxxxxxxx Recommendation"); provided, however, that the Board of Directors of ~~Parent makes~~ Xxxxxxxx may make a Change ~~of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows:~~ in ~~favor of approval and adoption of~~ the ~~Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended~~ Xxxxxxxx Recommendation pursuant to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsSection 6.5 hereof.

Appears in 1 contract

Samples: Merger Agreement (Phillips Petroleum Co)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ JPMorgan Chase and ~~Company~~ Bank One shall cooperate in preparing and ~~each~~ shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company~~ Bank One stockholders at the ~~Company~~ Bank One Stockholders Meeting (as defined in Section 5.1(b)) and to the ~~Parent~~ JPMorgan Chase stockholders at the ~~Parent~~ JPMorgan Chase Stockholders Meeting (as defined in Section 5.1(c)) (such joint proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and ~~Parent~~ JPMorgan Chase shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the issuance of ~~Parent~~ JPMorgan Chase Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “Form S-4”). Each of ~~Parent~~ JPMorgan Chase and ~~Company shall:~~ Bank One shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. JPMorgan Chase and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Bank One shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise the other party of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . Each party shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. None of the information supplied or to be supplied by Company or Parent for inclusion or incorporation by reference in the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party JPMorgan Chase shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use ~~commercially~~ its reasonable best efforts to take any action required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ JPMorgan Chase Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to either of the parties, or their respective affiliates, officers or directors, should be discovered by either party which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Bank One and ~~Parent. Company~~ JPMorgan Chase. (b) Bank One shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the “~~Company~~ Bank One Stockholders Meeting”) for the purpose of obtaining the ~~Bye-Law~~ Required Bank One Vote ~~and~~ with respect to the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and transactions contemplated by this Agreement. The Board of Directors of ~~Company~~ Bank One shall ~~include~~ use its reasonable best efforts to obtain from the ~~Bye-Law Recommendation~~ Bank One stockholders the Required Bank One Vote in favor of adoption of this Agreement, and nothing contained in this Agreement shall be deemed to relieve Bank One of its obligation to submit this Agreement to its stockholders for a vote on the ~~Company Recommendation in the Joint Proxy Statement/Prospectus. Parent~~ adoption thereof. (c) JPMorgan Chase shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form S-4 becomes effective (the “~~Parent~~ JPMorgan Chase Stockholders Meeting”) for the purpose of obtaining the Required ~~Parent~~ JPMorgan Chase Vote ~~and, subject~~ with respect to ~~Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ transactions contemplated by this Agreement. The Board of Directors of ~~Parent~~ JPMorgan Chase shall ~~include~~ use its reasonable best efforts to obtain from the ~~Parent Recommendation~~ JPMorgan Chase stockholders the Required JPMorgan Chase Vote in favor of adoption of this Agreement, and nothing contained in this Agreement shall be deemed to relieve JPMorgan Chase of its obligation to submit this Agreement to its stockholders for a vote on the ~~Joint Proxy Statement/Prospectus. Company~~ adoption thereof. (d) Bank One and ~~Parent~~ JPMorgan Chase shall each use their ~~commercially~~ reasonable best efforts to cause the ~~Company~~ Bank One Stockholders Meeting and the ~~Parent~~ JPMorgan Chase Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 1 contract

Samples: Merger Agreement (J P Morgan Chase & Co)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, Parent and the Company shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials ~~which~~ that Table of Contents shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”), and Parent shall prepare, together with Company, and file with the SEC a registration statement on Form S-4 (of which the Joint Proxy Statement/Prospectus and Parent shall ~~be a part)~~ prepare and file with ~~respect to~~ the ~~issuance of Parent Common Stock in~~ SEC the ~~Merger (such~~ Form S-4, . The Joint Proxy Statement/Prospectus will be included as a prospectus in and ~~any amendments or supplements thereto,~~ will constitute a part of the “Form ~~S-4”)~~S-4 as Parent’s prospectus. Each of Parent and the Company ~~shall:~~ shall use ~~commercially~~ reasonable commercial efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby~~, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective~~. Each of Parent and the Company shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written comments and advise ~~the~~ each other ~~party~~ of any oral comments with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both Parent and the Company, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ hereto that are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or its business, financial condition or results of operations; and provided, further, that Parent, in connection with a Change in the Parent Recommendation, and the Company, in connection with a Change in the Company Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by ~~reference therein;~~ reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its board of directors’ deliberations and conclusions to be accurately described. Parent will use reasonable commercial efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~Parent stockholders, and the ~~rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ Company will use reasonable commercial efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/~~or Form S-4. Parent and Company shall make any necessary filings with respect~~ Prospectus to be mailed to the ~~Merger~~ Company stockholders, in each case, as promptly as practicable after the Form S-4 is declared effective under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each Act. Each party ~~shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action;~~ hereto will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy ~~Statement/~~Statement/ Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of~~ Parent or the ~~parties~~Company, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Parent or the Company and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Parent and ~~Parent.~~ the Company. (b) The Company shall duly take all lawful action to call, give notice of, convene and hold ~~a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following~~ the ~~date upon which the Form S-4 becomes effective (the “~~Company Stockholders ~~Meeting”)~~ Meeting as soon as practicable on a date determined in accordance with the mutual agreement of Parent and the Company for the purpose of obtaining the ~~Bye-Law Vote and the Required~~ Company ~~Vote~~ Stockholder Approval and, subject to Section 06.4, shall take all lawful action to solicit the Company Stockholder Approval. The board of directors of the Company shall recommend the approval of the plan of merger contained in this Agreement by the stockholders of the Company to the effect as set forth in Section 4.3 (the “Company Recommendation”), and shall not (i) ~~Company shall use commercially reasonable efforts~~ withdraw, modify or qualify (or propose to ~~solicit and secure the Bye-Law Vote and the Required Company Vote~~ withdraw, modify or qualify) in ~~accordance with applicable legal requirements and~~ any manner adverse to Parent such recommendation or (ii) take any action or make any statement in connection with the ~~Special Committee and~~ Company Stockholders Meeting inconsistent with such recommendation (collectively, a “Change in the Company Recommendation”); provided, however, that the Board of Directors of the Company ~~shall include the Bye-Law Recommendation and~~ may make a Change in the Company Recommendation pursuant to Section 6.4 hereof. Notwithstanding any Change in the ~~Joint Proxy Statement/Prospectus.~~ Company Recommendation, this Agreement shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving and adopting this Agreement and the Merger and nothing Table of Contents contained herein shall be deemed to relieve the Company of such obligation unless this Agreement shall have first been terminated as set forth in Section 9.2 or Section 9.3. (c) Parent shall duly take all lawful action to call, give notice of, convene and hold ~~a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following~~ the ~~date upon which the Form S-4 becomes effective (the “~~Parent Stockholders ~~Meeting”)~~ Meeting as soon as practicable on a date determined in accordance with the mutual agreement of Parent and the Company for the purpose of obtaining the ~~Required~~ Parent ~~Vote~~ Stockholder Approval and, subject to Section ~~5.4~~5.3, ~~(i) Parent~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Required~~ Parent ~~Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Stockholder Approval. The Board of Directors of Parent shall ~~include~~ recommend the approval of this Agreement and the issuance of Parent ~~Recommendation~~ Common Stock in the ~~Joint Proxy Statement/Prospectus. Company~~ Merger by the stockholders of Parent as set forth in Section 5.3 (the “Parent Recommendation”), and ~~Parent~~ shall ~~each use their commercially reasonable efforts~~ not (i) withdraw, modify or qualify (or propose to ~~cause~~ withdraw, modify or qualify) in any manner adverse to the Company ~~Stockholders Meeting and~~ such recommendation or (ii) take any action or make any statement in connection with the Parent Stockholders Meeting ~~to be held on~~ inconsistent with such recommendation (collectively, a “Change in the ~~same date. Unless Parent’s Special Committee or~~ Parent Recommendation”); provided, however, that the Board of Directors of Parent ~~makes~~ may make a Change of in the Parent Recommendation pursuant to Section 6.5 hereof. Notwithstanding any Change in the Parent Recommendation, this Agreement shall be submitted to the stockholders of Parent ~~shall,~~ at the Parent Stockholders Meeting for the purpose of approving and ~~shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and~~ adopting this Agreement and the ~~transactions contemplated hereby, including~~ Merger and the ~~Merger,~~ issuance of Parent Common Stock in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger ~~or inhibit the timely consummation of the Merger, in each case, in any material respect,~~ and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, nothing contained herein shall be deemed to relieve Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such ~~Company Common Shares other than agreements entered into with Company, (B) directly~~ obligation unless this Agreement shall have first been terminated as set forth in Section 9.2 or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsSection 9.3.

Appears in 1 contract

Samples: Merger Agreement (Symmetricom Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ WJ and ~~Company~~ OSI shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC mutually acceptable proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint ----- Proxy Statement/Prospectus") and WJ shall prepare and file a registration -------------------------- statement on Form S-4 with respect to the issuance of WJ Common Stock in the Merger (the "Form S-4"). The Joint Proxy Statement/~~Prospectus”),~~ Prospectus will be included -------- in and ~~Parent shall prepare, together with Company, and file with~~ will constitute a part of the ~~SEC a registration statement on~~ Form S-4 ~~(of which~~ as WJ's prospectus. The Form S-4 and the Joint Proxy Statement/Prospectus shall ~~be a part)~~ comply as to form in all material respects with ~~respect to~~ the ~~issuance~~ applicable provisions of ~~Parent Common Stock in~~ the ~~Merger (such Form S-4,~~ Securities Act and ~~any amendments or supplements thereto,~~ the ~~“Form S-4”)~~Exchange Act and the rules and regulations thereunder. Each of ~~Parent~~ WJ and ~~Company shall:~~ OSI shall use ~~commercially~~ reasonable best efforts to have ~~the Joint Proxy Statement/cleared by the SEC and~~ the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. WJ and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ OSI shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . WJ will provide ~~the other party~~ OSI with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint Proxy Statement/and the~~ Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the other party~~ OSI with a copy of all such filings made with the SEC. ~~None of the information supplied~~ Except otherwise provided for herein, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both parties, at which approval shall not be unreasonably withheld or delayed; provided, that with respect to documents -------- filed by a party which are incorporated by reference in the ~~date~~ Form S-4 or Joint Proxy Statement/Prospectus, this right of ~~mailing~~ approval shall apply only with respect to ~~stockholders~~ information relating to the other party or its business, financial condition or results of operations; and ~~at the times of the meetings of stockholders to be held~~ provided, further, that WJ, in connection with a -------- ------- Change in the ~~Merger~~WJ Recommendation, ~~contain any untrue~~ and OSI, in connection with a Change in the OSI Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by reference) pursuant to a Qualifying Amendment (as defined below) to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors' deliberations and conclusions to be accurately described. A "Qualifying ---------- Amendment" means an amendment or supplement to the Joint Proxy --------- Statement/Prospectus or Form S-4 (including by incorporation by reference) to the extent it contains (i) a Change in the WJ Recommendation or a Change in the OSI Recommendation (as the case may be), (ii) a statement of ~~a material fact or omit to state any material fact required to be stated therein or necessary in order to make~~ the ~~statements therein, in light~~ reasons of the ~~circumstances under which they were made, not misleading; provided that,~~ Board of Directors of WJ or OSI (as the case may be) for making such Change in ~~each~~ the WJ Recommendation or Change in the OSI Recommendation (as the case ~~of (A~~may be) and (~~B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on~~ iii) additional information ~~supplied by~~ reasonably related to the ~~other party for inclusion or incorporation by reference therein;~~ foregoing. WJ will use reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~WJ stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ OSI will use reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to OSI's stockholders, in each case after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities ~~Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to~~ Act. WJ shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Share Issuance and ~~each party~~ OSI shall furnish all information concerning it OSI and the holders of ~~its capital stock~~ OSI Common Stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ WJ Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~WJ or OSI, or any of their respective affiliates, officers or directors, should be discovered by WJ or OSI which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ WJ and ~~Parent. Company shall~~ OSI. (b) OSI shall, duly take (subject to the accuracy of the provisions of Section 3.1(e) and Section 3.2 (e) (provided that OSI shall have used reasonable best efforts to ensure that such representation is true and correct)), all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable,~~ on a date determined in accordance with the mutual agreement of OSI and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ WJ (the ~~“Company~~ "OSI Stockholders Meeting”") for the purpose of ------------------------ obtaining the ~~Bye-Law~~ Required OSI Vote with respect to the transactions contemplated by this Agreement and shall take all lawful action to solicit the adoption of this Agreement by the Required OSI Vote; and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of ~~Company~~ OSI shall ~~include~~ recommend adoption of this Agreement by the ~~Bye-Law Recommendation~~ stockholders of OSI to the effect as set forth in Section 3.2(f) (the "OSI Recommendation"), and shall not withdraw, ------------------ modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to WJ such recommendation or take any action or make any statement in connection with the ~~Company Recommendation~~ OSI Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the OSI Recommendation"); provided -------------------------------- the foregoing shall not prohibit accurate disclosure (and such disclosure shall not be deemed to be a Change in the OSI Recommendation) of factual information regarding the business, financial condition or results of operations of WJ or OSI or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal (provided, that the Board of Directors of OSI does not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to WJ its recommendation) in the Form S-4 or the Joint Proxy Statement/Prospectus, to the extent such information, facts, identity or terms is required to be disclosed therein under applicable law, rule or regulation; and, provided further, that the Board of Directors of OSI may make a Change in the OSI Recommendation pursuant to Section 5.5 hereof. ~~Parent~~ Notwithstanding any Change in the OSI Recommendation, this Agreement shall be submitted to the stockholders of OSI at the OSI Stockholders Meeting for the purpose of adopting the Agreement and approving the Merger and nothing contained in this Section 5.1(b) shall be deemed to relieve OSI of such obligation. (c) WJ shall duly take (subject to the accuracy of the provisions of Section 3.2 (e) and Section 3.1(e) (provided that WJ shall have used reasonable best efforts to ensure that such representation is true and correct) all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable,~~ on a date determined in accordance with the mutual agreement of WJ and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ OSI (the ~~“Parent~~ "WJ Stockholders Meeting”") for the purpose of obtaining the ~~Required Parent Vote and, subject to Section 5.4, (i) Parent~~ WJ Stockholder ----------------------- Approval and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit the approval of the Share Issuance and ~~secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements~~ adoption of the Certificate Amendment; and ~~(ii)~~ the ~~Special Committee and~~ Board of Directors of ~~Parent~~ WJ shall ~~include~~ recommend approval of the ~~Parent Recommendation~~ Share Issuance and the adoption of the Certificate Amendment by the stockholders of WJ to the effect as set forth in Section 3.1(f) (the "WJ Recommendation"), and shall not withdraw, ----------------- modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to OSI such recommendation or take any action or make any statement in connection with the WJ Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the WJ Recommendation"); provided the ------------------------------- foregoing shall not prohibit accurate disclosure (and such disclosure shall not be deemed to be a Change in the WJ Recommendation) of factual information regarding the business, financial condition or operations of WJ or OSI or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal (provided, that the Board of Directors of WJ does not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to OSI its recommendation) in the Form S-4 or the Joint Proxy Statement/Prospectus~~. Company and Parent shall each use their commercially reasonable efforts~~ , to ~~cause~~ the ~~Company Stockholders Meeting and the Parent Stockholders Meeting~~ extent such information, facts, identity or terms is required to be ~~held on the same date. Unless Parent’s Special Committee~~ disclosed therein under applicable law, rule or regulation; and, provided further, that the Board of Directors of ~~Parent makes~~ WJ may make a Change ~~of Parent~~ in the WJ Recommendation pursuant to Section 5.5 hereof. Notwithstanding any Change in the WJ Recommendation, ~~Parent shall~~a proposal to approve the Share Issuance, and a proposal to adopt the Certificate Amendment shall ~~cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor~~ be submitted to the stockholders of ~~approval and adoption of~~ WJ at the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except WJ Stockholders Meeting for the ~~Merger)~~purpose of obtaining the WJ Stockholder Approval and nothing contained in this Section 5.1(c) ~~that would compete with, or impede, or interfere with or that would reasonably~~ shall be ~~expected~~ deemed to ~~discourage the Merger or inhibit the timely consummation~~ relieve WJ of ~~the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect~~ such obligation. (d) For purposes of ~~any covenant, representation or warranty or any other obligation of Company under~~ this Agreement~~. In furtherance~~ , a Change in the OSI Recommendation shall be deemed to include, without limitation, a recommendation by the OSI Board of ~~the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any~~ Directors of ~~its Company Common Shares in~~ a ~~Voting trust or subject any of its Company Common Shares to any arrangement~~ third party Acquisition Proposal with respect to OSI and a Change in the ~~Voting~~ WJ Recommendation shall be deemed to include, without limitation, a recommendation by the WJ Board of ~~such Company Common Shares other than agreements entered into~~ Directors of a third party Acquisition Proposal with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries respect to ~~purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants~~WJ.

Appears in 1 contract

Samples: Merger Agreement (Wesley Jessen Visioncare Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Conexant and ~~Company~~ GlobespanVirata shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC mutually acceptable proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Conexant shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 ~~(of which the Joint Proxy Statement/Prospectus shall be a part)~~ with respect to the issuance of ~~Parent~~ Conexant Common Stock in the Merger (~~such~~ the "Form S-4, "). The Joint Proxy Statement/Prospectus will be included in and ~~any amendments or supplements thereto,~~ will constitute a part of the “Form ~~S-4”)~~S-4 as Conexant's prospectus. Each of ~~Parent~~ Conexant and ~~Company shall:~~ GlobespanVirata shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC as promptly as reasonably practicable after filing with the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. Conexant and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ GlobespanVirata shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or the Form S-4 received from the SEC; . The parties shall 45 cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both Conexant and GlobespanVirata, at which approval shall not be unreasonably withheld or delayed; provided that with respect to documents filed by a party which are incorporated by reference in the ~~date~~ Form S-4 or Joint Proxy Statement/Prospectus, this right of ~~mailing~~ approval shall apply only with respect to ~~stockholders~~ information relating to the other party or its business, financial condition or results of operations; and ~~at the times of the meetings of stockholders to be held~~ provided, further, that Conexant, in connection with a Change in the ~~Merger~~Conexant Recommendation, ~~contain any untrue statement~~ and GlobespanVirata, in connection with a Change in the GlobespanVirata Recommendation (each of a ~~material fact or omit~~ Change in the Conexant Recommendation and a Change in the GlobespanVirata Recommendation being hereinafter sometimes referred to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (Bas a "Change"), ~~neither party~~ may amend or supplement the Joint Proxy Statement/Prospectus or the Form S-4 (including by incorporation by reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall ~~be responsible or liable for any statements made or incorporated by reference therein based on~~ apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors' deliberations and conclusions accurately described. Conexant will use reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~Conexant's stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ GlobespanVirata will use reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to GlobespanVirata's stockholders, in each case as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities ~~Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to~~ Act. Conexant shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the issuance of Conexant Common Stock in the Merger and ~~each party~~ GlobespanVirata and Conexant shall furnish all information concerning it GlobespanVirata and Conexant and the holders of ~~its capital stock~~ GlobespanVirata Common Stock as may be reasonably requested in connection with any such action; . Each of Conexant and GlobespanVirata will advise the ~~other party~~other, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop ~~order~~order with respect to the Form S-4, the suspension of the qualification of the ~~Parent~~ Conexant Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~Conexant or GlobespanVirata, or any of their respective affiliates, officers or directors, is discovered by Conexant or GlobespanVirata which should be set forth in an amendment or supplement to ~~any of~~ the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by ~~law, rules or regulations~~Applicable Laws, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders ~~of Company~~ Conexant and ~~Parent. Company~~ GlobespanVirata. (b) GlobespanVirata shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable,~~ on a date determined in accordance with the mutual agreement of Conexant and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ GlobespanVirata (the ~~“Company~~ "GlobespanVirata Stockholders Meeting”") for the purpose of obtaining the ~~Bye-Law~~ Required GlobespanVirata Vote with respect to the transactions contemplated by this Agreement and shall take all lawful action to solicit the approval and adoption of this Agreement and the Merger by the Required ~~Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote~~ GlobespanVirata Vote; and the ~~Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Board of Directors of ~~Company~~ GlobespanVirata shall ~~include the Bye-Law Recommendation~~ recommend approval and adoption of this Agreement and the ~~Company~~ Merger by the stockholders of GlobespanVirata to the effect as set forth in Section 3.1(f) (the "GlobespanVirata Recommendation"), and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Conexant the GlobespanVirata Recommendation or (ii) take any action or make any statement in connection with the GlobespanVirata Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the ~~Joint Proxy Statement/Prospectus~~GlobespanVirata Recommendation"); provided, however, that the Board of Directors of GlobespanVirata may make a Change in the GlobespanVirata Recommendation pursuant to Section 5.8. ~~Parent~~ Notwithstanding any Change in the GlobespanVirata Recommendation, this Agreement shall be submitted to the stockholders of GlobespanVirata at the GlobespanVirata Stockholders Meeting for the purpose of approving and adopting this Agreement and the Merger and nothing contained herein shall be deemed to relieve GlobespanVirata of such obligation. (c) Conexant shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable,~~ on a date determined in accordance with the mutual agreement of Conexant and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ GlobespanVirata (the ~~“Parent~~ "Conexant Stockholders Meeting”") for the purpose of obtaining the Required ~~Parent~~ Conexant Vote ~~and, subject~~ with respect to ~~Section 5.4, (i) Parent~~ the transactions contemplated by this Agreement and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the approval of the issuance of Conexant Common Stock in the Merger pursuant to this Agreement by the Required ~~Parent Vote in accordance with applicable legal requirements~~ Conexant Vote, and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of ~~Parent makes~~ Conexant shall recommend approval of the issuance of Conexant Common Stock in the Merger pursuant to this Agreement by the stockholders of Conexant to the effect as set forth in Section 3.2(f) (the "Conexant Recommendation") and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to GlobespanVirata the Conexant Recommendation or (ii) take any action or make any statement in connection with the Conexant Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the Conexant Recommendation"); provided, however, that the Board of Directors of Conexant may make a Change ~~of Parent~~ in the Conexant Recommendation pursuant to Section 5.8. Notwithstanding any Change in the Conexant Recommendation, ~~Parent shall, and~~ the issuance of Conexant Common Stock in the Merger pursuant to this Agreement shall ~~cause its subsidiaries to, Vote all Company~~ be submitted to the stockholders of Conexant at the Conexant Stockholders Meeting for the purpose of approving the issuance of Conexant Common ~~Shares held by it or its subsidiaries as follows:~~ Stock in ~~favor of approval and adoption of~~ the ~~Bye-Law Amendments and~~ Merger pursuant to this Agreement and ~~the transactions contemplated hereby, including the Merger, in favor of any other matter intended~~ nothing contained herein shall be deemed to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting relieve Conexant of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsobligation.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Conexant Systems Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ CNET and ~~Company~~ Z-D shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the joint proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company at the Company Stockholders Meeting and to the Parent~~ CNET stockholders at the ~~Parent~~ CNET Stockholders Meeting (as defined in Section 5.1(c)) and the matters to be submitted to the Z-D stockholders at the Z-D Stockholders Meeting (defined in Section 5.1(b)) (such ~~joint~~ proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ CNET shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 ~~(of which the Joint Proxy Statement/Prospectus shall be a part)~~ with respect to the issuance of ~~Parent~~ CNET Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “"Form S-4”"). The Joint Proxy Statement/Prospectus will be included as a prospectus in and will constitute a part of the Form S-4 as CNET's prospectus. Each of ~~Parent~~ CNET and ~~Company shall:~~ Z-D shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ hereby and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective~~thereby. ~~Parent~~ CNET and ~~Company~~ Z-D shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other ~~party~~ with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both parties, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided ~~that, in each case of (A) and (B), neither~~ that with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. CNET will use reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~CNET stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ Z-D will use reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to Z-D's stockholders, in each case as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities ~~Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to~~ Act. CNET shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the Merger and each ~~party~~ of Z-D and CNET shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ CNET Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~CNET or Z-D, or any of their respective affiliates, officers or directors, should be discovered by CNET or Z-D, which information should be set forth in an amendment or supplement to ~~any of~~ either the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ CNET and ~~Parent. Company~~ Z-D. (b) Z-D shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable,~~ on a date determined in accordance with the mutual agreement of Z-D and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ CNET (the ~~“Company~~ "Z-D Stockholders Meeting”") for the purpose of obtaining the ~~Bye~~Z-~~Law Vote~~ D Stockholder Approval and ~~the Required Company Vote and, subject to Section 0, (i) Company~~ shall its use ~~commercially~~ reasonable best efforts to solicit ~~and secure~~ the ~~Bye~~Z-~~Law Vote~~ D Stockholder Vote; and the ~~Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Board of Directors of ~~Company~~ Z-D shall recommend adoption of this Agreement by the stockholders of Z-D (the "Z-D Recommendation"), and shall not, unless CNET makes a change in the CNET Recommendation, (x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to CNET such recommendation or (y) take any action or make any statement (other than any action described in the foregoing clause (x)) in connection with the Z-D Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the Z-D Recommendation"); provided, however, any action or statement under clause (y) will not be deemed a Change in the Z-D Recommendation provided (I) such action or statement is taken or made pursuant to advice from Sullxxxx & Xromxxxx, xxunsel to Z-D, to the effect that such action or statement is required by applicable law, (II) if a Z-D Public Proposal has been made and not rescinded, such action or statement shall not relate to such Z-D Public Proposal other than any factual statement required by any regulatory authority (including the SEC) and shall in any event include a rejection of such Z-D Public Proposal and (III) such action or statement also includes a reaffirmation of the ~~Bye~~Z-~~Law Recommendation~~ D Board of Directors' approval of the Merger and the ~~Company Recommendation~~ other transactions contemplated hereby and recommendation to the Z-D stockholders to adopt this Agreement provided further, however, that, notwithstanding clause (I), (II) or (III), the Board of Directors of Z-D may make a Change in the ~~Joint Proxy Statement/Prospectus~~Z-D Recommendation pursuant to Section 5.4 hereof. ~~Parent~~ Notwithstanding any Change in the Z-D Recommendation, this Agreement shall be submitted to the stockholders of Z-D at the Z-D Stockholders Meeting for the purpose of adopting this Agreement and nothing contained herein shall be deemed to relieve Z-D of such obligation. (c) CNET shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable,~~ on a date determined in accordance with the mutual agreement of CNET and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ Z-D (the ~~“Parent~~ "CNET Stockholders Meeting”") for the purpose of obtaining the ~~Required Parent Vote and, subject~~ CNET Stockholder Approval with respect to ~~Section 5.4, (i) Parent~~ the transactions contemplated by this Agreement and shall use ~~commercially~~ its reasonable best efforts to solicit the CNET Stockholder Vote, and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of ~~Parent~~ CNET shall recommend approval of the issuance of CNET Common Stock pursuant to this 42 -38- Agreement by the stockholders of CNET (the "CNET Recommendation"), and shall not, unless Z-D makes a Change ~~of Parent~~ in the Z-D Recommendation, ~~Parent shall~~(x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Z-D such recommendation or (y) take any action or make any statement (other than any action described in the foregoing clause (x)) in connection with the CNET Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the CNET Recommendation"); provided, however, any action or statement under clause (y) will not be deemed a Change in the CNET Recommendation provided (I) such action or statement is taken or made pursuant to advice from Simpxxx Xxxxxxx & Xartxxxx, xxunsel to CNET, to the effect that such action or statement is required by applicable law, (II) if a CNET Public Proposal has been made and not rescinded, such action or statement shall not relate to such CNET Public Proposal other than any factual statement required by any regulatory authority (including the SEC) and shall ~~cause its subsidiaries to, Vote all Company Common Shares held by it~~ in any event include a rejection of such CNET Public Proposal and (III) such action or ~~its subsidiaries as follows: in favor of approval and adoption~~ statement also includes a reaffirmation of the ~~Bye-Law Amendments~~ CNET Board of Directors' approval of the Merger and the other transactions contemplated hereby and recommendation to the CNET stockholders to approve the issuance of CNET Common Stock pursuant to this Agreement; provided further, however, that, notwithstanding clause (I), (II) or (III), the Board of Directors of CNET may make a Change in the CNET Recommendation pursuant to Section 5.4 hereof. Notwithstanding any Change in the CNET Recommendation, this Agreement shall be submitted to the stockholders of CNET at the CNET Stockholders Meeting for the purpose of approving the issuance of CNET Common Stock pursuant to this Agreement and ~~the transactions contemplated hereby, including the Merger, in favor of any other matter intended~~ nothing contained herein shall be deemed to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting relieve CNET of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsobligation.

Appears in 1 contract

Samples: Merger Agreement (Cnet Networks Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Xxxxxxxx and ~~Company~~ Tosco shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/~~Prospectus”),~~ Prospectus and ~~Parent~~ Xxxxxxxx shall ~~prepare, together with Company,~~ prepare and file with the SEC ~~a registration statement on~~ the Form ~~S-4 (of which the~~ S-4. The Joint Proxy Statement/Prospectus ~~shall~~ will be included as a ~~part) with respect to~~ prospectus in and will constitute a part of the ~~issuance of Parent Common Stock in the Merger (such~~ Form ~~S-4, and any amendments or supplements thereto, the “Form S-4”)~~S-4 as Xxxxxxxx'x prospectus. Each of ~~Parent~~ Xxxxxxxx and ~~Company shall:~~ Xxxxx shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby, . Xxxxxxxx and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Tosco shall, as promptly as practicable after receipt thereof, provide ~~the~~ each other ~~party~~ with copies of any written ~~comments~~ comments, and advise ~~the~~ each other ~~party~~ of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both Xxxxxxxx and Xxxxx, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or its business, financial condition or results of operations; and provided, further, that Xxxxxxxx, in connection with a Change in the Xxxxxxxx Recommendation, and Tosco, in connection with a Change in the Tosco Recommendation, may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by ~~reference therein;~~ reference) pursuant to a Qualifying Amendment to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors' deliberations and conclusions to be accurately described. Xxxxxxxx will use reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~Xxxxxxxx stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ Tosco will use reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to Tosco stockholders, in each case, as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each Act. Each party ~~shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action;~~ will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Xxxxxxxx Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of the parties~~Xxxxxxxx or Tosco, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Xxxxxxxx or Xxxxx and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party discovering such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Xxxxxxxx and ~~Parent. Company~~ Tosco. (b) Tosco shall duly take all lawful action to call, give notice of, convene and hold the Tosco Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Xxxxxxxx and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”)~~ Xxxxx for the purpose of obtaining the ~~Bye-Law Vote~~ Tosco Stockholder Approval and ~~the Required Company Vote and, subject to Section 0, (i) Company~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Tosco Stockholder Approval. The Board of Directors of ~~Company~~ Tosco shall ~~include~~ recommend the ~~Bye-Law Recommendation~~ approval of the plan of merger contained in this Agreement by the stockholders of Tosco to the effect as set forth in Section 4.1(p) (the "Tosco Recommendation"), and ~~the Company Recommendation~~ shall not, unless Xxxxxxxx makes a Change in the ~~Joint Proxy Statement/Prospectus. Parent~~ Xxxxxxxx Recommendation, (x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Xxxxxxxx such recommendation or (y) take any action or make any statement in connection with the Tosco Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the Tosco Recommendation"); provided, however, that the Board of Directors of Tosco may make a Change in the Tosco Recommendation pursuant to Section 6.5 hereof. (c) Xxxxxxxx shall duly take all lawful action to call, give notice of, convene and hold the Xxxxxxxx Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Xxxxxxxx and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”)~~ Xxxxx for the purpose of obtaining the ~~Required Parent Vote and, subject to Section 5.4, (i) Parent~~ Xxxxxxxx Stockholder Approval and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Xxxxxxxx Stockholder Approval. The Board of Directors of ~~Parent~~ Xxxxxxxx shall ~~include~~ recommend the ~~Parent Recommendation~~ approval of issuance of Xxxxxxxx Common Stock in the ~~Joint Proxy Statement/Prospectus. Company~~ Merger by the stockholders of Xxxxxxxx (the "Xxxxxxxx Recommendation"), and ~~Parent~~ shall ~~each use their commercially reasonable efforts~~ not, unless Tosco makes a Change in the Tosco Recommendation, (x) withdraw, modify or qualify (or propose to ~~cause~~ withdraw, modify or qualify) in any manner adverse to Tosco such recommendation or (y) take any action or make any statement in connection with the ~~Company~~ Xxxxxxxx Stockholders Meeting ~~and~~ inconsistent with such recommendation (collectively, a "Change in the ~~Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or~~ Xxxxxxxx Recommendation"); provided, however, that the Board of Directors of ~~Parent makes~~ Xxxxxxxx may make a Change ~~of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows:~~ in ~~favor of approval and adoption of~~ the ~~Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended~~ Xxxxxxxx Recommendation pursuant to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsSection 6.5 hereof.

Appears in 1 contract

Samples: Merger Agreement (Tosco Corp)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Buyer and the Company shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials ~~which~~ that shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/~~Prospectus”),~~ Prospectus and ~~Parent~~ Buyer shall ~~prepare, together with Company,~~ prepare and file with the SEC ~~a registration statement on~~ the Form ~~S-4 (of which the Joint~~ S-4. The Proxy Statement/Prospectus ~~shall~~ will be included as a ~~part) with respect to~~ prospectus in and will constitute a part of the ~~issuance of Parent Common Stock in the Merger (such~~ Form ~~S-4, and any amendments or supplements thereto, the “Form S-4”)~~S-4 as Buyer's prospectus. Each of ~~Parent~~ Buyer and the Company ~~shall:~~ shall use ~~commercially~~ its reasonable best efforts to have the ~~Joint~~ Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC as soon after such filing as practicable and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby, . Each of Buyer and ~~to mail~~ the ~~Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and~~ Company shall, as promptly as practicable after receipt thereof, provide the other party with copies of any written ~~comments~~ comments, and advise ~~the~~ each other ~~party~~ of any oral ~~comments~~ comments, with respect to the ~~Joint~~ Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint~~ Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None~~ Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Proxy Statement/Prospectus or the Form S-4 shall be made without the approval of both Buyer and the ~~information supplied~~ Company, which approval shall not be unreasonably withheld or delayed; provided, that, with respect to ~~be supplied~~ documents filed by ~~Company or Parent for inclusion or incorporation~~ a party hereto that are incorporated by reference in the ~~(A)~~ Form S-4 ~~will~~or Proxy Statement/Prospectus, at this right of approval shall apply only with respect to information relating to the ~~time~~ other party or its business, financial condition or results of operations. Buyer will use reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed to Buyer stockholders (if the Buyer Stockholder Approval is necessary or reasonably deemed desirable) and the Company will use reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed to the Company stockholders, in each case, as promptly as practicable after the Form S-4 is ~~filed with the SEC and at the time it becomes~~ declared effective under the Securities Act. If, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus will, at the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/or the Form S-4; and promptly notify the other party if at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of~~ Buyer or the ~~parties~~Company, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Buyer or the Company and such information should be set forth in an amendment or supplement to any of the Form S-4 or the ~~Joint~~ Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party hereto discovering such information shall promptly notify the other parties hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Buyer and ~~Parent.~~ the Company. (b) The Company shall duly take all lawful action to call, give notice of, convene and hold ~~a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following~~ the ~~date upon which the Form S-4 becomes effective (the “~~Company Stockholders ~~Meeting”)~~ Meeting as soon as practicable on a date determined in accordance with the mutual agreement of Buyer and the Company for the purpose of obtaining the ~~Bye-Law Vote and the Required~~ Company ~~Vote~~ Stockholder Approval and, subject to Section 06.4, ~~(i) Company~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Bye-Law Vote and the Required~~ Company ~~Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Stockholder Approval. The Board of Directors of the Company shall ~~include~~ recommend the ~~Bye-Law Recommendation~~ adoption of the plan of Merger contained in this Agreement by the stockholders of the Company to the effect as set forth in Section 4.1(s) (the "COMPANY RECOMMENDATION"), and shall not (i) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Buyer such recommendation or (ii) take any action or make any statement in connection with the Company Stockholders Meeting inconsistent with such recommendation (collectively, a "CHANGE IN THE COMPANY RECOMMENDATION"); provided, however, that the Board of Directors of the Company may make a Change in the Company Recommendation pursuant to Section 6.4 hereof and to effect any action permitted by Section 8.1 hereof. Notwithstanding any Change in the ~~Joint Proxy Statement/Prospectus. Parent~~ Company Recommendation, this Agreement shall be submitted to the stockholders of the Company at the Company Stockholders Meeting for the purpose of approving and adopting this Agreement and the Merger and nothing contained herein shall be deemed to relieve the Company of such obligation unless terminated under Section 8.1. (c) If such Buyer Stockholder Approval is required under the DGCL or Nasdaq rules to consummate the Merger, or is otherwise reasonably deemed desirable by Buyer, Buyer shall duly take all lawful action to call, give notice of, convene and hold the Buyer Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Buyer and ~~in any event within 45 days, following~~ the ~~date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”)~~ Company for the purpose of obtaining the ~~Required Parent Vote~~ Buyer Stockholder Approval and, ~~subject to Section 5.4~~shall take all lawful action, ~~(i) Parent shall use commercially reasonable efforts~~ consistent with its fiduciary duties, to solicit ~~and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii)~~ Buyer Stockholder Approval. If such Buyer Stockholder Approval is required under the ~~Special Committee and Board of Directors of Parent shall include~~ DGCL or Nasdaq rules to consummate the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee Merger, or is otherwise reasonably deemed desirable by Buyer, the Board of Directors of ~~Parent makes a Change~~ Buyer shall recommend that the Buyer's stockholders amend the Certificate of ~~Parent Recommendation, Parent shall~~Incorporation to increase the authorized Buyer Capital Stock and to permit the issuance of Buyer Stock in the Merger (the "BUYER RECOMMENDATION"), and shall ~~cause its subsidiaries to~~not (i) withdraw, ~~Vote all~~ modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to the Company ~~Common Shares held by it~~ such recommendation or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against (ii) take any action or ~~agreement~~ make any statement in connection with the Buyer Stockholders Meeting inconsistent with such recommendation (~~including any merger~~collectively, ~~amalgamation~~a "CHANGE IN THE BUYER RECOMMENDATION"); provided, ~~consolidation~~however, ~~business combination, reorganization, recapitalization, liquidation or sale or transfer~~ that the Board of ~~any material assets~~ Directors of ~~Company or its subsidiaries (except for~~ Buyer may make a Change in the ~~Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected~~ Buyer Recommendation to ~~discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against~~ effect any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held permitted by ~~it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants~~Section 8.1 hereof.

Appears in 1 contract

Samples: Merger Agreement (Decode Genetics Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as ~~reasonably~~ practicable following the date hereof, ~~Parent~~ Dianon and ~~Company~~ UroCor shall ~~cooperate in preparing~~ prepare and ~~each shall cause to be filed~~ file with the SEC mutually acceptable proxy materials which shall constitute the Joint Proxy Statement/Prospectus (such proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Dianon shall ~~prepare, together with Company,~~ prepare and file ~~with the SEC~~ a registration statement on Form S-4 with respect to the issuance of Dianon Common Stock in the Merger (the "Form S-4"). The Joint Proxy Statement/Prospectus will be included in and will constitute a part of ~~which~~ the Form S-4 as Dianon's prospectus. The Form S-4 and the Joint Proxy Statement/Prospectus shall ~~be a part)~~ comply as to form in all material respects with ~~respect to~~ the ~~issuance~~ applicable -43- 48 provisions of ~~Parent Common Stock in~~ the ~~Merger (such Form S-4,~~ Securities Act and ~~any amendments or supplements thereto,~~ the ~~“Form S-4”)~~Exchange Act and the rules and regulations thereunder. Each of ~~Parent~~ Dianon and ~~Company shall:~~ UroCor shall use ~~commercially~~ reasonable efforts to have ~~the Joint Proxy Statement/cleared by the SEC and~~ the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. Dianon and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ UroCor shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/~~or Form S-4~~ Prospectus received from the SEC~~; cooperate and~~ . Dianon will provide ~~the other party~~ UroCor with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint Proxy Statement/and the~~ Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the other party~~ UroCor with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will, at~~ or the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, in each case of (A) and (B), neither party Form S-4 shall be ~~responsible~~ made without the approval of both parties, which approval shall not be unreasonably withheld or ~~liable for any statements made or~~ delayed; provided, that with respect to documents filed by a party which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. Dianon will use reasonable efforts to cause the Joint Proxy Statements/Prospectus to be mailed to Dianon stockholders, and UroCor will use reasonable efforts to cause the Joint Proxy Statement/~~and~~ Prospectus to be mailed to UroCor's stockholders, in each case after the Form S-4 ~~to comply as to form in all material respects with the requirements of the Exchange Act and~~ is declared effective under the Securities Act~~, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty~~ . Dianon shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Share Issuance and ~~each party~~ UroCor shall furnish all information concerning it UroCor and the holders of ~~its capital stock~~ UroCor Common Stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Dianon Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~Dianon or UroCor, or any of their respective affiliates, officers or directors, should be discovered by Dianon or UroCor which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Dianon and ~~Parent. Company~~ UroCor. (b) UroCor shall duly take (subject to compliance with the provisions of Section 3.2(e) (provided that UroCor shall have used reasonable efforts to ensure that such representations are true and correct)) all lawful action to call, give notice of, convene and hold a meeting of its stockholders on a date as ~~promptly~~ soon as ~~practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ reasonably practicable (the ~~“Company~~ "UroCor Stockholders Meeting”") for the purpose of obtaining the ~~Bye-Law Vote~~ required approval of its stockholders with respect to the transactions contemplated by this Agreement, including the Alternative Merger Structure, and shall take all lawful action to solicit the adoption of this Agreement, including the -44- 49 Alternative Merger Structure, by the requisite vote of its stockholders; and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of ~~Company~~ UroCor shall ~~include~~ recommend adoption of this Agreement, including the ~~Bye-Law Recommendation~~ Alternative Merger Structure, by the stockholders of UroCor to the effect as set forth in Section 3.2(f) (the "UroCor Recommendation"), and shall not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Dianon such recommendation or the ~~Company Recommendation~~ approval of the Merger or this Agreement or take any action or make any statement in connection with the UroCor Stockholders Meeting inconsistent with such recommendation or approval (collectively, a "Change in the UroCor Recommendation"); provided the foregoing shall not prohibit accurate disclosure (and such disclosure shall not be deemed to be a Change in the UroCor Recommendation) of factual information regarding the business, financial condition or results of operations of Dianon or UroCor or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal (provided, that the Board of Directors of UroCor does not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Dianon its recommendation) in the Form S-4 or the Joint Proxy Statement/~~Prospectus. Parent~~ Prospectus or otherwise, to the extent such information, facts, identity or terms is required to be disclosed under applicable law; and, provided further, that the Board of Directors of UroCor may make a Change in the UroCor Recommendation pursuant to Section 5.5 hereof. (c) Dianon shall duly take (subject to compliance with the provisions of Section 3.1(e) (provided that Dianon shall have used reasonable efforts to ensure that such representation is true and correct)) all lawful action to call, give notice of, convene and hold a meeting of its stockholders on a date as ~~promptly~~ soon as ~~practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ reasonably practicable (the ~~“Parent~~ "Dianon Stockholders Meeting”") for the purpose of obtaining the ~~Required Parent Vote and~~Dianon Stockholder Approvals. (d) For purposes of this Agreement, ~~subject~~ a Change in the UroCor Recommendation shall be deemed to ~~Section 5.4~~include, ~~(i) Parent shall use commercially reasonable efforts to solicit and secure~~ without limitation, a recommendation by the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ UroCor Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement third party Acquisition Proposal with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsUroCor.

Appears in 1 contract

Samples: Merger Agreement (Urocor Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, Parent and the Company shall cooperate in preparing and ~~each~~ shall cause to be filed with the SEC as promptly as practicable mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of~~ Company stockholders at the Company Stockholders Meeting ~~and to the Parent stockholders at the Parent Stockholders Meeting~~ (as defined in Section 6.1(b)) (such ~~joint~~ proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the ~~“Joint~~ "Proxy Statement/Prospectus”"), and Parent shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form ~~S-4~~ F-4 (of which the ~~Joint~~ Proxy Statement/Prospectus shall be a part) with respect to the issuance of the Parent Common ~~Stock~~ Shares in the Merger (such Form ~~S-4~~F-4, and any amendments or supplements thereto, the “"Form ~~S-4”~~F-4"). Each of Parent and the Company ~~shall:~~ shall use ~~commercially~~ reasonable best efforts to have the ~~Joint Proxy Statement/cleared by the SEC and the~~ Form ~~S-4~~ F-4 declared effective by the ~~SEC,~~ SEC as promptly as practicable and to keep the Form ~~S-4~~ F-4 effective as long as is necessary to consummate the Merger and the other transactions contemplated hereby~~, and to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective~~. Parent and the Company shall, as promptly as practicable after receipt thereof, provide ~~the~~ each other ~~party~~ with copies of any written comments and advise the other party of any oral comments with respect to the ~~Joint~~ Proxy Statement/Prospectus or Form ~~S-4~~ F-4 received from the SEC; . Each party shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the ~~Joint~~ Proxy Statement/Prospectus and the Form ~~S-4~~ F-4 prior to filing such with the SEC, and each party will provide the other party with a copy of all such filings made with the SEC. ~~None~~ Except as provided in Section 6.4 and in this Section 6.1(a) or as required by the securities Laws, no amendment or supplement (including by incorporation by reference) to the Proxy Statement/Prospectus or the Form F-4 shall be made without the approval of ~~the information supplied~~ each party, which approval shall not be unreasonably withheld or delayed; provided that with respect to ~~be supplied~~ documents filed by ~~Company or Parent for inclusion or incorporation~~ a party which are incorporated by reference in the Form F-4 or Proxy Statement/Prospectus, this right of approval shall apply only with respect to information relating to the Merger or the other party. Parent shall also take any action (Aother than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) ~~Form S-4 will~~reasonably required to be taken under any applicable state securities Laws in connection with the Merger, at and each party shall furnish all necessary information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action. Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form ~~S-4 is filed~~ F-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Shares issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC ~~and~~ for amendment of the Proxy Statement/Prospectus or the Form F-4. If at any time prior to the ~~time it becomes effective under~~ Company Stockholders Meeting any information relating to any of the ~~Securities Act~~parties, ~~contain~~ or their respective affiliates, officers or directors, should be discovered by any ~~untrue statement~~ party which should be set forth in an amendment or supplement to any of the Form F-4 or the Proxy Statement/Prospectus so that such documents would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ~~and (B) Joint Proxy Statement/Prospectus will, at~~ the date of mailing to stockholders and at the times of the meetings of stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under party which ~~they were made, not misleading; provided that, in each case of (A) and (B), neither party~~ discovers such information shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; cause the Joint Proxy Statement/and the Form S-4 to comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each party shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/or the Form S-4; and promptly notify the other party if at any time prior to the Effective Time it discovers any information relating to either of the parties, or their respective affiliates, officers or directors, which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include 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 parties hereto and, to the extent required by ~~law, rules or regulations~~Law, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company and Parent.~~ the Company. (b) The Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as ~~practicable, and in any event within 45 days,~~ practicable following the date upon which the Form ~~S-4~~ F-4 becomes effective (the “"Company Stockholders Meeting”) for the purpose of obtaining the Bye-Law Vote and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”") for the purpose of obtaining the Required ~~Parent~~ Company Vote with respect to the transactions contemplated by this Agreement and, subject to Section ~~5.4~~6.4(b), (i) ~~Parent~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the adoption of this Agreement by the Required Company Vote, (ii) shall recommend adoption of this Agreement by the stockholders of the Company to the effect as set forth in Section 3.28 (the "Company Recommendation"); and (iii) shall not withdraw, modify or qualify (or publicly propose to or publicly state that it intends to withdraw, modify or qualify) in any manner adverse to Parent ~~Vote~~ such recommendation (collectively, a "Change in Company Recommendation") (it being understood that any confidential communication in connection with informing Parent that it is considering a Change in Company Recommendation shall not constitute a Change in Company Recommendation), provided, however, that notwithstanding the foregoing the Company may effect a Change in Company Recommendation if the Company's Board of Directors, after consultation with outside legal counsel, has determined that failure to take such action would be inconsistent with its fiduciary duties under applicable Law and, in the case such Change in Company Recommendation is in respect of an Acquisition Proposal, the Company shall have complied in all material respects with the applicable provisions of Section 6.4 with respect thereto. Notwithstanding any Change in Company Recommendation, if this Agreement is not otherwise terminated by either the Company or Parent in accordance with ~~applicable legal requirements and (ii)~~ the ~~Special Committee and Board~~ terms hereof this Agreement shall be submitted to the stockholders of ~~Directors of Parent shall include~~ the ~~Parent Recommendation in the Joint Proxy Statement/Prospectus.~~ Company ~~and Parent shall each use their commercially reasonable efforts to cause~~ at the Company Stockholders Meeting for the purpose of voting on adopting this Agreement (but the Company may solicit votes consistent with its Change in Company Recommendation), and nothing contained herein (other than the ~~Parent Stockholders Meeting~~ termination rights set forth in Article VIII), including any rights of the Company to take certain actions pursuant to Section 6.4, shall be ~~held on~~ deemed to relieve the ~~same date. Unless Parent’s Special Committee or~~ Company of such obligation. (c) In the case the Board of Directors of ~~Parent makes~~ the Company is considering effecting a Change in Company Recommendation that is not in respect of an Acquisition Proposal, then the Company shall provide Parent ~~Recommendation~~notice at least five days in advance of making such Change in Company Recommendation (unless at the time such notice is otherwise required to be given there are less than five days prior to the Company Stockholders Meeting, ~~Parent shall~~in which case the Company shall provide as much notice as is reasonably practicable), that it is considering making such change and ~~shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption~~ of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsreason therefor.

Appears in 1 contract

Samples: Merger Agreement (Hancock John Financial Services Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ America Online and ~~Company~~ Time Warner shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the joint proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company~~ America Online stockholders at the ~~Company~~ America Online Stockholders Meeting and the matters to be submitted to the ~~Parent~~ Time Warner stockholders at the ~~Parent~~ Time Warner Stockholders Meeting (such ~~joint~~ proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Holdco shall ~~prepare, together with Company,~~ prepare and file with the SEC a registration statement on Form S-4 ~~(of which the Joint Proxy Statement/Prospectus shall be a part)~~ with respect to the issuance of ~~Parent Common~~ Holdco Capital Stock in the ~~Merger~~ Mergers (such Form S-4, and any amendments or supplements thereto, the “"Form S-4”"). The Joint Proxy Statement/Prospectus will be included as a prospectus in and will constitute a part of the Form S-4 as Holdco's prospectus. Each of ~~Parent~~ America Online and ~~Company shall:~~ Time Warner shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the ~~Merger~~ Mergers and the ~~other~~ transactions contemplated ~~hereby,~~ thereby. America Online and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ Time Warner shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other ~~party~~ with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both parties, at which approval shall not be unreasonably withheld or delayed; provided that with respect to documents filed by a party which are incorporated by reference in the ~~date~~ Form S-4 or Joint Proxy Statement/Prospectus, this right of ~~mailing~~ approval shall apply only with respect to ~~stockholders~~ information relating to the other party or its business, financial condition or results of operations; and ~~at the times of the meetings of stockholders to be held~~ provided further that America Online, in connection with a Change in the ~~Merger~~America Online Recommendation (as defined in Section 6.1(c)), ~~contain any untrue~~ and Time Warner, in connection with a Change in the Time Warner Recommendation (as defined in Section 6.1(b)), may amend or supplement the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by reference) pursuant to a Qualifying Amendment (as defined below) to effect such a Change, and in such event, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, and shall be subject to the right of each party to have its Board of Directors' deliberations and conclusions to be accurately described. A "Qualifying Amendment" means an amendment or supplement to the Joint Proxy Statement/Prospectus or Form S-4 (including by incorporation by reference) to the extent it contains (i) a Change in the America Online Recommendation or a Change in the Time Warner Recommendation (as the case may be), (ii) a statement of ~~a material fact or omit to state any material fact required to be stated therein or necessary in order to make~~ the ~~statements therein, in light~~ reasons of the ~~circumstances under which they were made, not misleading; provided that,~~ Board of Directors of America Online or Time Warner (as the case may be) for making such Change in ~~each~~ the America Online Recommendation or Change in the Time Warner Recommendation (as the case ~~of (A~~may be) and (B)iii) additional information reasonably related to the foregoing. America Online will use reasonable best efforts to cause the Joint Proxy Statements/Prospectus to be mailed to America Online stockholders, neither party shall be responsible or liable for any statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference therein; and Time Warner will use reasonable best efforts to cause the Joint Proxy Statement/~~and~~ Prospectus to be mailed to Time Warner's stockholders, in each case as promptly as practicable after the Form S-4 ~~to comply as to form in all material respects with the requirements of the Exchange Act and~~ is declared effective under the Securities Act~~, as the case may be, and the rules and regulations of the SEC thereunder, except that no representation or warranty~~ . Holdco shall be made by either such party with respect to statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in the Joint Proxy Statement/or Form S-4. Parent and Company shall make any necessary filings with respect to the Merger under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the ~~Merger~~ Mergers and each ~~party~~ of Time Warner and America Online shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent Common~~ Holdco Capital Stock issuable in connection with the ~~Merger~~ Mergers for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~America Online or Time Warner, or any of their respective affiliates, officers or directors, should be discovered by America Online or Time Warner which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ America Online and Parent. Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”) for the purpose of obtaining the Bye-Law Vote and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Company shall include the Bye-Law Recommendation and the Company Recommendation in the Joint Proxy Statement/Prospectus. Parent shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable, and in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”) for the purpose of obtaining the Required Parent Vote and, subject to Section 5.4, (i) Parent shall use commercially reasonable efforts to solicit and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent makes a Change of Parent Recommendation, Parent shall, and shall cause its subsidiaries to, Vote all Company Common Shares held by it or its subsidiaries as follows: in favor of approval and adoption of the Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsTime Warner.

Appears in 1 contract

Samples: Merger Agreement (America Online Inc)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Valero and ~~Company~~ UDS shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the matters to be submitted to the shareholders of Company at the Company Stockholders Meeting and to the Parent stockholders at the Parent Stockholders Meeting (such joint proxy statement/, and any amendments or supplements thereto, the “Joint Proxy Statement/~~Prospectus”),~~ Prospectus and ~~Parent~~ Valero shall ~~prepare, together with Company,~~ prepare and file with the SEC ~~a registration statement on~~ the Form ~~S-4 (of which the~~ S-4. The Joint Proxy Statement/Prospectus ~~shall~~ will be included as a ~~part) with respect to~~ prospectus in and will constitute a part of the ~~issuance of Parent Common Stock in the Merger (such~~ Form ~~S-4, and any amendments or supplements thereto, the “Form S-4”)~~S-4 as Valero's prospectus. Each of ~~Parent~~ Valero and ~~Company shall:~~ UDS shall use ~~commercially~~ reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated hereby, . Valero and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective. Parent and Company~~ UDS shall, as promptly as practicable after receipt thereof, provide ~~the~~ each other ~~party~~ with copies of any written ~~comments~~ comments, and advise ~~the~~ each other ~~party~~ of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the ~~SEC,~~ SEC and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both Valero and UDS, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided that, ~~in each case of (A) and (B), neither~~ with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ which are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. Valero will use reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~Valero stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ UDS will use reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to UDS stockholders, in each case, as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to take any action required to be taken under any applicable state or foreign securities laws in connection with the Merger and each Act. Each party ~~shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action;~~ will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Valero Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If, at any time prior to the Effective ~~Time it discovers~~ Time, any information relating to ~~either of the parties~~Valero or UDS, or any of their respective affiliates, officers or directors, ~~which~~ is discovered by Valero or UDS and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party discovering such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Valero and ~~Parent. Company~~ UDS. (b) UDS shall duly take all lawful action to call, give notice of, convene and hold the UDS Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Valero and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Company Stockholders Meeting”)~~ UDS for the purpose of obtaining the ~~Bye-Law Vote and the Required Company Vote~~ UDS Stockholder Approval and, subject to Section 06.5, ~~(i) Company~~ shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ UDS Stockholder Approval. The Board of Directors of ~~Company~~ UDS shall, subject to the proper exercise of its fiduciary duties, recommend the adoption of the plan of merger contained in this Agreement by the stockholders of UDS to the effect as set forth in Section 4.1(p) (the "UDS Recommendation"), and shall ~~include the Bye-Law Recommendation and the Company Recommendation~~ not, unless Valero makes a Change in the ~~Joint Proxy Statement/Prospectus. Parent~~ Valero Recommendation, (x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Valero the UDS Recommendation or (y) take any action or make any statement in connection with the UDS Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the UDS Recommendation"); provided, however, that the Board of Directors of UDS may make a Change in the UDS Recommendation pursuant to Section 6.5 hereof. (c) Valero shall duly take all lawful action to call, give notice of, convene and hold the Valero Stockholders Meeting as soon as practicable on a ~~meeting~~ date determined in accordance with the mutual agreement of ~~its stockholders as promptly as practicable,~~ Valero and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective (the “Parent Stockholders Meeting”)~~ UDS for the purpose of obtaining the ~~Required Parent Vote and, subject to Section 5.4, (i) Parent~~ Valero Stockholder Approval and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit ~~and secure~~ the ~~Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and~~ Valero Stockholder Approval. The Board of Directors of ~~Parent shall include~~ Valero shall, subject to the ~~Parent Recommendation~~ proper exercise of its fiduciary duties, recommend the adoption of the plan of merger contained in this Agreement by the stockholders of Valero to the effect set forth in Section 4.2(p) and the approval of the issuance of Valero Common Stock in the ~~Joint Proxy Statement/Prospectus. Company~~ Merger by the stockholders of Valero (the "Valero Recommendation"), and ~~Parent~~ shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of Parent not, unless UDS makes a Change ~~of Parent~~ in the UDS Recommendation, ~~Parent shall~~(x) withdraw, ~~and shall cause its subsidiaries to~~modify or qualify (or propose to withdraw, ~~Vote all Company Common Shares held by it~~ modify or ~~its subsidiaries as follows:~~ qualify) in ~~favor of approval and adoption of~~ any manner adverse to UDS the ~~Bye-Law Amendments and this Agreement and the transactions contemplated hereby, including the Merger, in favor of any other matter intended to facilitate the timely consummation of the Merger, against~~ Valero Recommendation or (y) take any action or ~~agreement~~ make any statement in connection with the Valero Stockholders Meeting inconsistent with such recommendation (~~including any merger~~collectively, ~~amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for~~ a "Change in the ~~Merger~~Valero Recommendation")) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrants.

Appears in 1 contract

Samples: Merger Agreement (Ultramar Diamond Shamrock Corp)

Preparation of Proxy Statement; Stockholders Meetings. (a) As promptly as reasonably practicable following the date hereof, ~~Parent~~ Western and ~~Company~~ Adaptive shall cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials which shall constitute the joint proxy statement/prospectus relating to the matters to be submitted to the ~~shareholders of Company at the Company Stockholders Meeting and to the Parent~~ Western stockholders at the ~~Parent~~ Western Stockholders Meeting (as defined in Section 5.1(c)) and the matters to be submitted to the Adaptive stockholders at the Adaptive Stockholders Meeting (defined in Section 5.1(b)) (such ~~joint~~ proxy ~~statement/~~statement/prospectus, and any amendments or supplements thereto, the “"Joint Proxy Statement/Prospectus~~”),~~ ") and ~~Parent~~ Western shall ~~prepare, together with Company,~~ prepare and file with the -------------------------------- SEC a registration statement on Form S-4 ~~(of which the Joint Proxy Statement/Prospectus shall be a part)~~ with respect to the issuance of ~~Parent~~ Western Common Stock in the Merger (such Form S-4, and any amendments or supplements thereto, the “"Form S-4”"). Each of ~~Parent~~ Western and ~~Company shall:~~ Adaptive shall use ~~commercially~~ its reasonable -------- efforts to cause Xxxxxxx Xxxxxxx & Xxxxxxxx and Xxxxxx Godward LLP, respectively, to deliver to it a tax opinion satisfying the requirements of Item 601 of Regulation S-K promulgated under the Securities Act, which tax opinion shall be included as an exhibit to the Form S-4. The Joint Proxy Statement/Prospectus will be included as a prospectus in and will constitute a part of the Form S-4 as Western's prospectus. Each of Western and Adaptive shall use reasonable best efforts to have the Joint Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the ~~SEC,~~ SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the ~~other~~ transactions contemplated ~~hereby,~~ hereby and ~~to mail the Joint Proxy Statement/Prospectus to their respective stockholders as promptly as practicable after the Form S-4 is declared effective~~thereby. ~~Parent~~ Western and ~~Company~~ Adaptive shall, as promptly as practicable after receipt thereof, provide the other party ~~with~~ copies of any written comments and advise the other party of any oral ~~comments~~ comments, with respect to the Joint Proxy Statement/Prospectus or Form S-4 received from the SEC; . The parties shall cooperate and provide the other ~~party~~ with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC, and ~~each party~~ will provide ~~the~~ each other ~~party~~ with a copy of all such filings made with the SEC. ~~None of~~ Notwithstanding any other provision herein to the ~~information supplied~~ contrary, no amendment or ~~to be supplied~~ supplement (including by ~~Company or Parent for inclusion or~~ incorporation by ~~reference in~~ reference) to the (A) Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) Joint Proxy Statement/Prospectus ~~will~~or the Form S-4 shall be made without the approval of both parties, ~~at the date of mailing to stockholders and at the times of the meetings of stockholders to~~ which approval shall not be ~~held in connection with the Merger, contain any untrue statement of a material fact~~ unreasonably withheld or ~~omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~delayed; provided ~~that, in each case of (A) and (B), neither~~ -------- that with respect to documents filed by a party ~~shall be responsible or liable for any statements made or~~ that are incorporated by reference ~~therein based on~~ in the Form S-4 or Joint Proxy Statement/Prospectus, this right of approval shall apply only with respect to information ~~supplied by~~ relating to the other party ~~for inclusion~~ or ~~incorporation by reference therein;~~ its business, financial condition or results of operations. Western will use reasonable best efforts to cause the Joint Proxy Statement/~~and the Form S-4~~ Prospectus to ~~comply as~~ be mailed to ~~form in all material respects with the requirements of the Exchange Act and the Securities Act, as the case may be~~Western stockholders, and ~~the rules and regulations of the SEC thereunder, except that no representation or warranty shall be made by either such party with respect~~ Adaptive will use reasonable best efforts to ~~statements made or incorporated by reference therein based on information supplied by the other party for inclusion or incorporation by reference in~~ cause the Joint Proxy Statement/or Prospectus to be mailed to Adaptive's stockholders, in each case as promptly as practicable after the Form ~~S-4. Parent and Company shall make any necessary filings with respect to the Merger~~ S-4 is declared effective under the Securities ~~Act and the Exchange Act and the rules and regulations thereunder; use commercially reasonable efforts to~~ Act. Western shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state ~~or foreign~~ securities laws in connection with the Merger and each ~~party~~ of Adaptive and Western shall furnish all information concerning it and the holders of its capital stock as may be reasonably requested in connection with any such action; . Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the ~~Parent~~ Western Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint Proxy Statement/Prospectus or the Form S-4~~; and promptly notify the other party if~~ . If at any time prior to the Effective Time ~~it discovers~~ any information relating to ~~either of the parties~~Western or Adaptive, or any of their respective affiliates, officers or directors, should be discovered by Western or Adaptive, which information should be set forth in an amendment or supplement to ~~any of~~ either the Form S-4 or the Joint Proxy Statement/Prospectus so that any of such documents would not include 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~~ misleading, the party that discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of ~~Company~~ Western and ~~Parent. Company~~ Adaptive. (b) Adaptive shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable,~~ on a date determined in accordance with the mutual agreement of Adaptive and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ Western (the ~~“Company~~ "Adaptive -------- Stockholders Meeting”") for the purpose of obtaining the ~~Bye-Law Vote~~ Adaptive Stockholder -------------------- Approval and shall take all lawful action to solicit the Adaptive Stockholder Vote; and the Required Company Vote and, subject to Section 0, (i) Company shall use commercially reasonable efforts to solicit and secure the Bye-Law Vote and the Required Company Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of ~~Company~~ Adaptive shall ~~include the Bye-Law Recommendation~~ recommend adoption of this Agreement and the ~~Company Recommendation~~ transactions contemplated hereby by the stockholders of Adaptive (the "Adaptive Recommendation"), and shall not, unless Western makes a ----------------------- change in the ~~Joint Proxy Statement/Prospectus~~Western Recommendation, (x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Western such recommendation or (y) take any action or make any statement (other than any action described in the foregoing clause (x)) in connection with the Adaptive Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the Adaptive Recommendation"); provided, however, any action or ------------------------------------- -------- ------- statement under clause (y) will not be deemed a Change in the Adaptive Recommendation provided (I) such action or statement is taken or made pursuant to advice from Xxxxxx Godward LLP, counsel to Adaptive, to the effect that such action or statement is required by applicable law, (II) if a Adaptive Public Proposal has been made and not rescinded, such action or statement shall not relate to such Adaptive Public Proposal other than any factual statement required by any regulatory authority (including the SEC) and shall in any event include a rejection of such Adaptive Public Proposal and (III) such action or statement also includes a reaffirmation of the Adaptive Board of Directors approval of the Merger and the other transactions contemplated hereby and recommendation to the Adaptive stockholders to adopt this Agreement; provided, -------- further, however, that the Board of Directors of Adaptive may make a Change in ------- ------- the Adaptive Recommendation pursuant to Section 5.4 hereof. ~~Parent~~ Notwithstanding any Change in the Adaptive Recommendation, this Agreement shall be submitted to the stockholders of Adaptive at the Adaptive Stockholders Meeting for the purpose of voting upon this Agreement and nothing contained herein shall be deemed to relieve Adaptive of such obligation. (c) Western shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders ~~as promptly as practicable,~~ on a date determined in accordance with the mutual agreement of Western and ~~in any event within 45 days, following the date upon which the Form S-4 becomes effective~~ Adaptive (the ~~“Parent~~ "Western ------- Stockholders Meeting”") for the purpose of obtaining the ~~Required Parent Vote and, subject~~ Western Stockholder -------------------- Approval with respect to ~~Section 5.4, (i) Parent~~ the transactions contemplated by this Agreement and shall ~~use commercially reasonable efforts~~ take all lawful action to solicit the Western Stockholder Vote, and secure the Required Parent Vote in accordance with applicable legal requirements and (ii) the Special Committee and Board of Directors of Parent shall include the Parent Recommendation in the Joint Proxy Statement/Prospectus. Company and Parent shall each use their commercially reasonable efforts to cause the Company Stockholders Meeting and the Parent Stockholders Meeting to be held on the same date. Unless Parent’s Special Committee or the Board of Directors of ~~Parent~~ Western shall recommend approval of the issuance of Western Common Stock pursuant to this Agreement by the stockholders of Western (the "Western Recommendation"), and shall not, unless Adaptive makes a Change ~~of Parent~~ in ---------------------- the Adaptive Recommendation, ~~Parent shall~~(x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Adaptive such recommendation or (y) take any action or make any statement (other than any action described in the foregoing clause (x)) in connection with the Western Stockholders Meeting inconsistent with such recommendation (collectively, a "Change in the Western Recommendation"); provided, however, any action or ------------------------------------ -------- ------- statement under clause (y) will not be deemed a Change in the Western Recommendation provided (I) such action or statement is taken or made pursuant to advice from Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to Western, to the effect that such action or statement is required by applicable law, (II) if a Western Public Proposal has been made and not rescinded, such action or statement shall not relate to such Western Public Proposal other than any factual statement required by any regulatory authority (including the SEC) and shall ~~cause its subsidiaries to, Vote all Company Common Shares held by it~~ in any event include a rejection of such Western Public Proposal and (III) such action or ~~its subsidiaries as follows: in favor of approval and adoption~~ statement also includes a reaffirmation of the ~~Bye-Law Amendments~~ Western Board of Directors' approval of the Merger and the other transactions contemplated hereby and recommendation to the Western stockholders to approve the issuance of Western Common Stock pursuant to this Agreement; provided, further, however, that the -------- ------- ------- Board of Directors of Western may make a Change in the Western Recommendation pursuant to Section 5.4 hereof. Notwithstanding any Change in the Western Recommendation, this Agreement shall be submitted to the stockholders of Western at the Western Stockholders Meeting for the purpose of approving the issuance of Western Common Stock pursuant to this Agreement and ~~the transactions contemplated hereby, including the Merger, in favor of any other matter intended~~ nothing contained herein shall be deemed to facilitate the timely consummation of the Merger, against any action or agreement (including any merger, amalgamation, consolidation, business combination, reorganization, recapitalization, liquidation or sale or transfer of any material assets of Company or its subsidiaries (except for the Merger)) that would compete with, or impede, or interfere with or that would reasonably be expected to discourage the Merger or inhibit the timely consummation of the Merger, in each case, in any material respect, and against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of Company under this Agreement. In furtherance of the foregoing, Parent shall not, and shall cause its subsidiaries not to (A) deposit any of its Company Common Shares in a Voting trust or subject any of its Company Common Shares to any arrangement with respect to the Voting relieve Western of such Company Common Shares other than agreements entered into with Company, (B) directly or indirectly transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber any of its Company Common Shares or any interest therein, (C) exercise any warrants held by it or its subsidiaries to purchase Company Common Shares, or transfer, sell, assign, convey, offer, exchange, pledge or otherwise dispose of or encumber such warrantsobligation.

Appears in 1 contract

Samples: Merger Agreement (Adaptive Broadband Corp)

Common use of Preparation of Proxy Statement; Stockholders Meetings Clause in Contracts