Preparation of Registration Statement; Special Meeting. (a) As promptly as practicable following the execution and delivery of this Agreement, Parent shall prepare, with the assistance of the Company, and cause to be filed with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, the “Registration Statement”) in connection with the registration under the Securities Act of the Parent Common Stock to be issued under this Agreement, which Registration Statement will constitute a prospectus under the Securities Act and will also contain the Proxy Statement and Consent Solicitation Statement. Each of Parent and the Company shall use its reasonable best efforts to cause the Registration Statement, the Proxy Statement and the Consent Solicitation Statement to comply with the rules and regulations promulgated by the SEC, to respond as promptly as practicable to any comments of the SEC or its staff and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the Mergers. Each party shall furnish all information concerning it as may reasonably be requested by the other party in connection with such actions and the preparation of the Registration Statement, the Proxy Statement and the Consent Solicitation Statement. Promptly after the Registration Statement is declared effective under the Securities Act, Parent will cause the Proxy Statement to be mailed to stockholders of Parent. (b) Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) any response to comments of the SEC or its staff with respect to the Registration Statement and any amendment to the Registration Statement filed in response thereto. If Parent or the Company becomes aware that any information contained in the Registration Statement shall have become false or misleading in any material respect or that the Registration Statement is required to be amended in order to comply with applicable Law, then (i) such party shall promptly inform the other parties and (ii) Parent, on the one hand, and the Company, on the other hand, shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) an amendment or supplement to the Registration Statement. Parent and the Company shall use reasonable best efforts to cause the Registration Statement as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of shares of Parent Common Stock, as applicable, in each case pursuant to applicable Law and subject to the terms and conditions of this Agreement and the Parent Organizational Documents. Each of Parent and the Company shall provide the other party with copies of any written comments, and shall inform such other parties of any oral comments, that Parent or the Company, as applicable, receives from the SEC or its staff with respect to the Registration Statement promptly after the receipt of such comments and shall give the other party a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior to responding to the SEC or its staff. (c) Parent agrees to include provisions in the Proxy Statement and to take reasonable action related thereto, with respect to the: (i) approval of this Agreement and the transactions contemplated hereby, including the Mergers (the “Transaction Proposal”); (ii) approval of the Parent A&R Charter (the “Amendment Proposal”) and each change to the Parent A&R Charter that is required to be separately approved; (iii) approval of the issuance of shares of Parent Common Stock as Per Share Company Common Stock Consideration and Per Share Company Preferred Stock Consideration and the issuance of shares of Parent Common Stock in connection with the Convertible Note Financing under applicable Nasdaq rules (the “Issuance Proposal”); (iv) approval and adoption of the Parent Incentive Plan (the “Parent Incentive Plan Proposal”), the Parent Earn Out Plan (the “Parent Earn Out Plan Proposal”) and the Parent ESPP (the “Parent ESPP Proposal”); (v) election of the Board Nominees in accordance with Section 8.07 (the “Election Proposal”); (vi) adjournment of the Special Meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the Mergers for any reason (the “Adjournment Proposal”), and (vii) approval of any other proposals reasonably agreed by Parent and the Company to be necessary or appropriate in connection with the transactions contemplated hereby (the “Additional Proposal” and, collectively with the Transaction Proposal, the Amendment Proposal, the Issuance Proposal, the Election Proposal, the Parent Incentive Plan Proposal, the Parent Earn Out Plan Proposal, the Parent ESPP Proposal, and the Adjournment Proposal, the “Proposals”). Without the prior written consent of the Company, the Proposals shall be the only matters (other than procedural matters) which Parent shall propose to be acted on by Parent’s stockholders at the Special Meeting. (d) Parent shall use reasonable best efforts to, as promptly as practicable: (i) establish the record date for, duly call, give notice of, convene and hold the Special Meeting in accordance with the DGCL; (ii) cause the Proxy Statement to be disseminated to Parent’s stockholders in compliance with applicable Law, including the DGCL; and (iii) solicit proxies from the holders of Parent Common Stock to vote in accordance with the recommendation of the Parent Board with respect to each of the Proposals. Parent shall, through the Parent Board, recommend to its stockholders that they approve the Proposals (the “Parent Board Recommendation”) and shall include the Parent Board Recommendation in the Proxy Statement, unless the Parent Board shall have changed the recommendation in accordance with Section 9.03(e). (e) The Parent Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Board Recommendation (a “Parent Change in Recommendation”). Notwithstanding anything in this Section 9.03 to the contrary, if, at any time prior to obtaining the Parent Stockholder Approval, the Parent Board determines in good faith, after consultation with its outside legal counsel, that in response to a Parent Intervening Event, the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Parent Board may, prior to obtaining the Parent Stockholder Approval, make a Parent Change in Recommendation; provided, however, that Parent shall not be entitled to make, or agree or resolve to make, a Parent Change in Recommendation unless (i) Parent delivers to the Company a written notice (a “Parent Intervening Event Notice”) advising the Company that the Parent Board proposes to take such action and containing the material facts underlying the Parent Board’s determination that a Parent Intervening Event has occurred, and (ii) at or after 5:00 p.m., New York City time, on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. New York City time on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (it being understood that any material development with respect to a Parent Intervening Event shall require a new notice but with an additional three Business Day (instead of four Business Day) period from the date of such notice, the “Parent Intervening Event Notice Period”)), the Parent Board reaffirms in good faith (after consultation with its outside legal counsel and financial advisor) that the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law. If requested by the Company, Parent will, and will use its reasonable best efforts to cause its Representatives to, during the Parent Intervening Event Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments in the terms and conditions of this Agreement so as to obviate the need for a Parent Change in Recommendation. (f) Notwithstanding the foregoing provisions of this Section 9.03, if on a date for which the Special Meeting is scheduled, (i) Parent has not received proxies representing a sufficient number of shares of Parent Common Stock to obtain the Parent Stockholder Approval, whether or not a quorum is present or (ii) any supplement or amendment to the Registration Statement or Proxy Statement is required by applicable Laws to be disseminated pursuant to Section 9.03(b), Parent shall have the right to (and at the Company’s request will) make one or more successive postponements or adjournments of the Special Meeting (it being understood that, in the event of any postponement or adjournment pursuant to the foregoing, the Special Meeting shall not be held later than five Business Days prior to the outside date); provided, that Parent shall not, without the prior written consent of the Company, postpone or adjourn the Special Meeting more than two times and, in no event without the prior written consent of the Company, shall any postponement or adjournment be made that would require that a new record date for the Special Meeting be established.
Appears in 1 contract
Preparation of Registration Statement; Special Meeting. (a) The Company agrees to use its reasonable best efforts to provide Acquiror with all information regarding the results of operations, management and business of the Company and its Subsidiaries required by Acquiror to be included in the Registration Statement, including unaudited financial statements, including consolidated balance sheets and consolidated statements of income, changes in shareholder equity, and cash flows, of the Company as at and for the nine months ended March 28, 2021, in each case, prepared in accordance with GAAP and Regulation S-X (the “Unaudited Interim Financial Statements”). The Company shall use its reasonable best efforts, and the Company shall cause its Subsidiaries to use their reasonable best efforts, to cause their officers and employees to, in each case, during normal business hours and upon reasonable advanced notice, reasonably cooperate with Acquiror and its counsel in connection with (i) the drafting of the Registration Statement and (ii) responding in a timely manner to comments on the Registration Statement from the SEC. Without limiting the generality of the foregoing, the Company shall use its reasonable best efforts to reasonably cooperate with Acquiror in connection with Acquiror’s preparation for inclusion in the Registration Statement of pro forma financial statements that comply with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC) to the extent such pro forma financial statements are required by Schedule 14A (it being understood that the obligation to prepare such financial statements shall be the obligation of Acquiror).
(b) As promptly as practicable following the execution and delivery of this Agreement (and in any event on or prior to the fifth (5th) Business Day following the delivery of the Unaudited Interim Financial Statements which fifth (5th) Business Day shall in no event be earlier than the twentieth (20th) day following the date of this Agreement), Parent Acquiror and the Company shall prepareprepare and mutually agree on (such agreement not to be unreasonably withheld or delayed), and Acquiror shall file with the assistance of the CompanySEC, and cause to be filed with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the Parent Surviving Company Class A Common Stock (including the Surviving Company Class A Common Stock into which shares of Surviving Company Class B Common Stock are convertible) to be issued under this Agreement, which Registration Statement will constitute a prospectus under the Securities Act and will also contain the Proxy Statement and Consent Solicitation Statement. Each The Registration Statement shall include for registration all shares of Parent and Surviving Company Class A Common Stock (including the Surviving Company shall use its reasonable best efforts Class A Common Stock into which shares of Surviving Company Class B Common Stock or Surviving Company Preferred Stock are convertible, to cause the extent eligible for registration on the Registration Statement, the Proxy Statement and the Consent Solicitation Statement to comply with the rules and regulations promulgated by the SEC, to respond as promptly as practicable to any comments of the SEC or its staff and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the Mergers. Each party shall furnish all information concerning it as may reasonably be requested by the other party in connection with such actions and the preparation of the Registration Statement, the Proxy Statement and the Consent Solicitation Statement. Promptly after the Registration Statement is declared effective under the Securities Act, Parent will cause the Proxy Statement ) to be mailed to stockholders of Parentissued under this Agreement, including the Earnout Shares.
(bc) Each of Parent Acquiror and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned withheld or delayed) ), any response to comments of the SEC or its staff with respect to the Registration Statement and any amendment to the Registration Statement filed in response thereto. If Parent Acquiror or the Company becomes aware that any information contained in the Registration Statement shall have become false or misleading in any material respect or that the Registration Statement is required to be amended in order to comply with applicable Law, then (i) such party shall promptly inform the other parties and (ii) ParentAcquiror, on the one hand, and the Company, on the other hand, shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned withheld or delayed) an amendment or supplement to the Registration Statement. Parent Acquiror and the Company shall use reasonable best efforts to cause the Registration Statement as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of shares of Parent Common Stock, as applicable, Acquiror Stockholders in each case pursuant to applicable Law and subject to the terms and conditions of this Agreement and the Parent Organizational Acquiror Governing Documents. Each of Parent and the Company and Acquiror shall provide the other party parties with copies of any written comments, and shall inform such other parties of any oral comments, that Parent or the Company, as applicable, Acquiror receives from the SEC or its staff with respect to the Registration Statement promptly after the receipt of such comments and shall give the other party parties a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior to responding to the SEC or its staff.
(cd) Parent Acquiror agrees to include provisions in the Proxy Statement and to take reasonable action related thereto, with respect to the: (i) the adoption and approval of the Business Combination (as defined in the Acquiror Governing Documents) and this Agreement and the transactions contemplated hereby, including the Mergers (the “Transaction Proposal”); , (ii) the adoption and approval of the Parent A&R Charter Domestication (the “Amendment Domestication Proposal”) and each change to the Parent A&R Charter that is required to be separately approved; ), (iii) the adoption and approval of the governing documents of Acquiror contemplated by the Acquiror Certificate of Incorporation (the “Governing Document Proposal”), (iv) to the extent required by the NYSE listing rules, the adoption and approval of the issuance of shares of Parent Common Stock as Per Share Company the Aggregate Closing Common Stock Consideration (together with the Earnout Shares), the Acquiror Class A Common Stock and Per Share Company the Acquiror Preferred Stock Consideration and (including the issuance of underlying shares of Parent Acquiror Class A Common Stock in connection with Stock) pursuant to the Convertible Note Financing under applicable Nasdaq rules Forward Purchase Contract, the Subscription Agreements or pursuant to Section 7.03(b) (the “Issuance NYSE Proposal”); , (ivv) the adoption and approval and adoption of the Parent Acquiror Omnibus Incentive Plan (the “Parent Acquiror Omnibus Incentive Plan Proposal”), (vi) the Parent Earn Out adoption and approval of the Acquiror Employee Stock Purchase Plan (the “Parent Earn Out Acquiror Employee Stock Purchase Plan Proposal”) and the Parent ESPP ), (the “Parent ESPP Proposal”); (v) election of the Board Nominees in accordance with Section 8.07 (the “Election Proposal”); (vivii) adjournment of the Special Meeting Meeting, if necessary, for up to a later date or dates if it is determined by Parent 15 days to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the Company that additional time is necessary to consummate the Mergers for any reason foregoing proposals (the “Acquiror Adjournment Proposal”), ) and (viiviii) the adoption and approval of any other proposals reasonably agreed by Parent Acquiror and the Company to be necessary or appropriate in connection with the transactions contemplated hereby Transaction (the “Additional Proposal” and, collectively and together with the Transaction Proposal, the Amendment Domestication Proposal, the Issuance Governing Document Proposal, the Election NYSE Proposal, the Parent Acquiror Omnibus Incentive Plan Proposal, the Parent Earn Out Acquiror Employee Stock Purchase Plan Proposal, the Parent ESPP Proposal, Proposal and the Acquiror Adjournment Proposal, the “Proposals”). The Acquiror Omnibus Incentive Plan Proposal shall provide that an aggregate number of shares of Acquiror Class A Common Stock equal to the percentage set forth on Schedule 8.03(d) of the outstanding shares of Acquiror Class A Common Stock as of Closing shall be reserved for issuance pursuant to the Acquiror Omnibus Incentive Plan, subject to annual increases as provided therein, and the Acquiror Employee Stock Purchase Plan Proposal shall provide that an aggregate number of shares of Acquiror Class A Common Stock equal to the percentage set forth on Schedule 8.03(d) of the outstanding shares of Acquiror Class A Common Stock as of Closing shall be reserved for issuance pursuant to the Acquiror Employee Stock Purchase Plan, subject to annual increases as provided therein. Without the prior written consent of the Company, the Proposals shall be the only matters (other than procedural matters) which Parent Acquiror shall propose to be acted on by Parent’s stockholders the Acquiror Stockholders at the Special Meeting.
(de) Parent Acquiror and the Company each shall use their reasonable best efforts toto (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all legal requirements applicable thereto, (ii) respond as promptly as practicable: reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement, (iiii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iv) to keep the Registration Statement effective as long as is necessary to consummate the Transactions. As promptly as practicable after the Registration Statement becomes effective, Acquiror shall cause the Proxy Statement to be mailed to the Acquiror Stockholders. Each of Acquiror and the Company shall promptly furnish all information concerning it as may reasonably be requested by the other party in connection with such actions and the preparation of the Registration Statement.
(f) Except as required by applicable Law, no filing of, or amendment or supplement to the Registration Statement will be made by Acquiror or the Company without the approval of the other party (such approval not to be unreasonably withheld, conditioned or delayed). Acquiror and the Company each will advise the other, promptly after they receive notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment thereto has been filed, of the issuance of any stop order, of the suspension of the qualification of the Surviving Company Class A Common Stock to be issued or issuable to the stockholders of the Company in connection with this Agreement for offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information.
(g) Acquiror shall (A) as promptly as practicable following the effectiveness of the Registration Statement (and in no event later than the date the Proxy Statement is required to be mailed in accordance with clause (B) below) establish the record date (which record date shall be mutually agreed with the Company) for, duly call, give notice of, convene and hold the Special Meeting (which Special Meeting shall be held not more than 25 days after the date on which Acquiror commences the mailing of the Proxy Statement to its stockholders of record in accordance with the DGCL; clause (iiB) below), (B) cause the Proxy Statement to be disseminated mailed to Parent’s its stockholders of record, as of the record date, as promptly as practicable (but in compliance with no event later than three (3) Business Days except as otherwise required by applicable Law) following the earlier to occur of: (x) in the event the preliminary Proxy Statement is not reviewed by the SEC, including the DGCLexpiration of the waiting period in Rule 14a-6(a) under the Exchange Act; or (y) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC, and (iiiC) thereafter, solicit proxies from the holders of Parent Common Stock Acquiror Stockholders to vote in accordance with the recommendation of the Parent Acquiror Board with respect to each of the Proposals. Parent Acquiror shall, through the Parent Acquiror Board, recommend to its stockholders that they approve the Proposals (the “Parent Acquiror Board Recommendation”) and shall include the Parent Acquiror Board Recommendation in the Proxy Statement, unless the Parent Acquiror Board shall have changed the recommendation in accordance with this Section 9.03(e8.03(g).
(e) . The Parent Acquiror Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Acquiror Board Recommendation (a an “Parent Acquiror Change in Recommendation”). Notwithstanding anything in this Section 9.03 to the contrary, ; provided that if, at any time prior to obtaining the Parent Acquiror Stockholder Approval, the Parent Acquiror Board determines in good faith, after consultation with its faith following receipt of a legal opinion from outside legal counsel, counsel that in response to a Parent Intervening Event, the failure to make a Parent effect an Acquiror Change in Recommendation with respect to such Intervening Event would be inconsistent with its breach the Acquiror Board’s fiduciary duties under applicable LawLaw then, in each case, Acquiror or the Parent Acquiror Board may, prior to obtaining the Parent Acquiror Stockholder Approval, make a Parent an Acquiror Change in Recommendation; provided, howeverfurther, that Parent shall Acquiror will not be entitled to make, or agree or resolve to make, a Parent an Acquiror Change in Recommendation unless (i) Parent Acquiror delivers to the Company a written notice (a an “Parent Intervening Event Acquiror Change in Recommendation Notice”) advising the Company that the Parent Acquiror Board proposes to take such action and containing a reasonable description of the material facts underlying the Parent Board’s determination that a Parent Intervening Event has occurredthat is the basis of the proposed action of the Acquiror Board, together with a copy of the aforementioned legal opinion from outside legal counsel (it being acknowledged that such Acquiror Change in Recommendation Notice shall not itself constitute a breach of this Agreement), and (ii) at or after 5:00 p.m., New York City time, on the fourth tenth (10th) Business Day immediately following the day on which Parent Acquiror delivered the Parent Intervening Event Acquiror Change in Recommendation Notice (such period from the time the Parent Intervening Event Acquiror Change in Recommendation Notice is provided until 5:00 p.m. New York City time on the fourth tenth (10th) Business Day immediately following the day on which Parent Acquiror delivered the Parent Intervening Event Notice (it being understood that any material development with respect to a Parent Intervening Event shall require a new notice but with an additional three Business Day (instead of four Business Day) period from the date of such noticeAcquiror Change in Recommendation Notice, the “Parent Intervening Event Acquiror Change in Recommendation Notice Period”)), the Parent Acquiror Board reaffirms in good faith (after consultation with its following the receipt of a legal opinion from outside legal counsel and financial advisor) that the failure to make a Parent an Acquiror Change in Recommendation would be inconsistent with its breach the Acquiror Board’s fiduciary duties under applicable Law. If requested by the Company, Parent will, Acquiror will and will use its reasonable best efforts to cause its Representatives to, during the Parent Intervening Event Acquiror Change in Recommendation Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments in the terms and conditions of this Agreement so as to obviate the need for a Parent an Acquiror Change in Recommendation. Acquiror’s obligations under this Section 8.03 to call and hold the Special Meeting with respect to all Proposals shall not be affected by any Acquiror Change in Recommendation.
(f) Notwithstanding the foregoing provisions of this Section 9.03, if on a date for which the Special Meeting is scheduled, (i) Parent has not received proxies representing a sufficient number of shares of Parent Common Stock to obtain the Parent Stockholder Approval, whether or not a quorum is present or (ii) any supplement or amendment to the Registration Statement or Proxy Statement is required by applicable Laws to be disseminated pursuant to Section 9.03(b), Parent shall have the right to (and at the Company’s request will) make one or more successive postponements or adjournments of the Special Meeting (it being understood that, in the event of any postponement or adjournment pursuant to the foregoing, the Special Meeting shall not be held later than five Business Days prior to the outside date); provided, that Parent shall not, without the prior written consent of the Company, postpone or adjourn the Special Meeting more than two times and, in no event without the prior written consent of the Company, shall any postponement or adjournment be made that would require that a new record date for the Special Meeting be established.
Appears in 1 contract
Samples: Business Combination Agreement (Isos Acquisition Corp.)
Preparation of Registration Statement; Special Meeting. (a) As promptly as practicable following the execution and delivery of this AgreementAgreement and the receipt by Pubco and SPAC of the PCAOB Audited Financial Statements, Parent the Acquiree Audited Financial Statements (if required) and the Unaudited Interim Financial Statements, Pubco and SPAC shall prepare, with the assistance of the Company, and cause to be filed with the SEC by Pubco a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the Parent shares of Pubco Class A Common Stock and Pubco Preferred Stock to be issued under this Agreement, the Pubco Class A Common Stock issuable upon conversion of the Pubco Preferred Stock and the Pubco Warrants (and the Pubco Class A Common Stock issuable upon exercise thereof), which Registration Statement will constitute a prospectus under the Securities Act and will also contain the Proxy Statement and Consent Solicitation Statement. Each of Parent SPAC and the Company shall use its reasonable best efforts to cause the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement to comply with the rules and regulations promulgated by the SEC, to respond as promptly as practicable to any comments of the SEC or its staff and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the Mergers. Each party of SPAC and the Company shall furnish all information concerning it as may reasonably be requested by the other party in connection with such actions and the preparation of the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement. Promptly after the Registration Statement is declared effective under the Securities Act, Parent SPAC will cause the Proxy Statement to be mailed to stockholders of ParentSPAC. SPAC and the Company shall each pay 50% of all fees and expenses incurred in connection with the preparation and filing of the Registration Statement and the receipt of stock exchange approval in connection with the listing of Pubco Class A Common Stock and the Pubco Preferred Stock to be issued under this Agreement (including the Pubco Class A Common Stock issuable upon conversion of the Pubco Preferred Stock) and the Pubco Warrants (and the Pubco Class A Common Stock issuable upon exercise thereof), other than fees and expenses of advisors (which shall be borne by the party incurring such fees).
(b) Each of Parent SPAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) any response to comments of the SEC or its staff with respect to the Registration Statement and any amendment to the Registration Statement filed in response thereto. If Parent SPAC or the Company becomes aware that any information contained in the Registration Statement shall have become false or misleading in any material respect or that the Registration Statement is required to be amended in order to comply with applicable Law, then (i) such party shall promptly inform the other parties and (ii) ParentSPAC, on the one hand, and the Company, on the other hand, shall reasonably cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) an amendment or supplement to the Registration Statement. Parent SPAC and the Company shall use reasonable best efforts to cause the Registration Statement as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of shares of Parent SPAC Common Stock, as applicable, in each case pursuant to applicable Law and subject to the terms and conditions of this Agreement and the Parent SPAC Organizational Documents. Each of Parent and the Company and SPAC shall provide the other party parties with copies of any written comments, and shall inform such other parties of any oral comments, that Parent or the Company, as applicable, SPAC receives from the SEC or its staff with respect to the Registration Statement promptly after the receipt of such comments and shall give the other party parties a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior to responding to the SEC or its staff.
(c) Parent agrees SPAC and Pubco agree to include provisions in the Proxy Statement and to take reasonable action related thereto, with respect to the: (i) approval of this Agreement and the transactions contemplated herebyTransactions, including the Mergers Business Combination (as defined in the SPAC Organizational Documents) and the adoption and approval of this Agreement (the “Transaction Proposal”); , (ii) approval to the extent required by applicable Laws or Nasdaq listing rules, approval, on an advisory basis, of the Parent A&R Charter (the “Amendment Proposal”) and each material change to the Parent A&R Pubco Organizational Documents effected by the Pubco Delaware Charter and the Pubco Delaware Bylaws that is required to be separately approved; (iii) approval of the issuance of shares of Parent Common Stock as Per Share Company Common Stock Consideration and Per Share Company Preferred Stock Consideration and the issuance of shares of Parent Common Stock in connection with the Convertible Note Financing under applicable Nasdaq rules approved (the “Issuance Proposal”); (iv) approval and adoption of the Parent Incentive Plan (the “Parent Incentive Plan Pubco Organizational Documents Advisory Proposal”), the Parent Earn Out Plan (the “Parent Earn Out Plan Proposal”) and the Parent ESPP (the “Parent ESPP Proposal”); (v) election of the Board Nominees in accordance with Section 8.07 (the “Election Proposal”); (viiii) adjournment of the Special Meeting Meeting, if necessary, to a later date or dates if it is determined by Parent permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the Company that additional time is necessary to consummate the Mergers for any reason foregoing proposals (the “Adjournment Proposal”), ) and (viiiv) approval of any other proposals reasonably agreed by Parent SPAC and the Company to be necessary or appropriate in connection with the transactions contemplated hereby Transactions (the “Additional Proposal” and, collectively and together with the Transaction Proposal, the Amendment Proposal, the Issuance Proposal, the Election Proposal, the Parent Incentive Plan Proposal, the Parent Earn Out Plan Proposal, the Parent ESPP Pubco Organizational Documents Advisory Proposal, and the Adjournment Proposal, the “Proposals”). Without the prior written consent of the Company, the Proposals shall be the only matters (other than procedural matters) which Parent SPAC shall propose to be acted voted on by Parent’s stockholders the SPAC Stockholders at the Special Meeting.
(d) Parent SPAC shall use reasonable best efforts to, as promptly as practicable: (i) establish the record date for, duly call, give notice of, convene and hold the Special Meeting in accordance with the DGCL; applicable Laws. SPAC shall use reasonable best efforts to, as promptly as practicable after the Registration Statement is declared effective under the Securities Act, (iii) in any event within five (5) Business Days cause the Proxy Statement to be disseminated to Parent’s stockholders SPAC Stockholders in compliance with applicable Law, including the DGCL; and (iiiii) solicit proxies from the holders of Parent SPAC Common Stock to vote in accordance with the recommendation of the Parent SPAC Board with respect to each of the ProposalsProposals and (iii) in any event within twenty (20) Business Days hold the Special Meeting. Parent SPAC shall, through the Parent SPAC Board, recommend to its stockholders that they approve the Proposals (the “Parent SPAC Board Recommendation”) and shall include the Parent SPAC Board Recommendation in the Proxy Statement, unless the Parent Board shall have changed the recommendation in accordance with Section 9.03(e).
(e) . The Parent SPAC Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent SPAC Board Recommendation (any of the foregoing actions, a “Parent SPAC Board Change in Recommendation”). Notwithstanding anything , other than in this Section 9.03 to the contrary, if, at any time prior to obtaining event that the Parent Stockholder Approval, the Parent SPAC Board determines in good faith, after consultation with its outside legal counsel, that in response to an Intervening Event has occurred and that, as a Parent Intervening Eventresult thereof, the a failure to make a Parent SPAC Board Change in Recommendation would reasonably be inconsistent with expected to be a breach by the SPAC Board of its fiduciary duties obligations to the SPAC Stockholders under applicable Law, ; provided that the Parent SPAC Board may, prior to obtaining the Parent Stockholder Approval, make a Parent Change in Recommendation; provided, however, that Parent shall will not be entitled to make, or agree or resolve to make, a Parent SPAC Board Change in Recommendation unless (ix) Parent SPAC delivers to the Company a written notice (a an “Parent Intervening Event Notice”) advising the Company that the Parent SPAC Board proposes to take such action and containing the material facts underlying the Parent SPAC Board’s determination that a Parent an Intervening Event has occurredoccurred and that a failure to make a SPAC Board Change in Recommendation would reasonably be expected to constitute a breach by the SPAC Board of its fiduciary obligations under applicable Law (it being acknowledged that any Intervening Event Notice shall not itself constitute a breach of this Agreement), and (iiy) at or after 5:00 p.m., New York City time, on the fourth fifth (5th) Business Day immediately following the day on which Parent SPAC delivered the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. New York City time on the fourth fifth (5th) Business Day immediately following the day on which Parent SPAC delivered the Parent Intervening Event Notice (it being understood that any material development with respect to a Parent an Intervening Event shall require a new notice but with an additional three (3) Business Day (instead of four a five (5) Business Day) period from the date of such notice), the “Parent Intervening Event Notice Period”)), after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that the Company shall have, prior to the expiration of the Intervening Event Notice Period, offered to SPAC, the Parent SPAC Board reaffirms in good faith (after consultation with its outside legal counsel and financial advisorcounsel) that the failure to make a Parent SPAC Board Change in Recommendation would reasonably be inconsistent with expected to be a breach of its fiduciary duties under applicable Law. If ; provided, further, that, if requested by the Company, Parent during the Intervening Event Notice Period and prior to making a SPAC Board Change in Recommendation, SPAC will, and will use its reasonable best efforts to cause its Representatives to, during the Parent Intervening Event Notice Period, engage negotiate in good faith negotiations with the Company and its Representatives during the Intervening Event Notice Period to make such revisions or adjustments in to the terms and conditions of this Agreement so as to obviate the need for a Parent SPAC Board Change in Recommendation.
(f) Notwithstanding . SPAC may postpone, suspend or adjourn the foregoing provisions of this Section 9.03, if Special Meeting on a one or more occasions after the date for which the Special Meeting was originally scheduled upon the good faith determination by the SPAC Board that such postponement or adjournment, as the case may be, is scheduled, necessary to (i) Parent has not received solicit additional proxies representing a sufficient number of shares of Parent Common Stock to obtain the Parent SPAC Stockholder Approval, whether or not a quorum is present or (ii) obtain a quorum if one is not present at any then scheduled Special Meeting, (iii) ensure that any supplement or amendment to the Registration Statement or Proxy Statement that the SPAC Board has determined in good faith is required by applicable Laws Law is provided to be disseminated pursuant the SPAC Stockholders with adequate time for review prior to Section 9.03(b)the Special Meeting, Parent shall have the right to or (and at iv) with the Company’s request will) make one or more successive postponements or adjournments of the Special Meeting (it being understood thatprior written consent; provided, that in the event of any a postponement or adjournment pursuant to the foregoingclauses (i), (ii), or (iii) above, the Special Meeting shall not be held reconvened as promptly as practicable and in any event no later than five (5) Business Days prior to after the outside date); provided, date that Parent shall not, without the prior written consent of the Company, postpone or adjourn the Special Meeting more than two times and, in no event without the prior written consent of the Company, shall any postponement or adjournment be made that would require that a new record date for the Special Meeting be establishedsuch matters are resolved.
Appears in 1 contract
Preparation of Registration Statement; Special Meeting. (a) As promptly as practicable following the execution and delivery of this Agreement, Parent shall prepare, with the assistance of the Company, and cause to be filed with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the Parent Common Class A Stock to be issued under this Agreement, which Registration Statement will constitute a prospectus under the Securities Act and will also contain the Proxy Statement and Consent Solicitation Statement. Each of Parent and the Company shall use its reasonable best efforts to cause the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement to comply with the rules and regulations promulgated by the SEC, to respond as promptly as practicable to any comments of the SEC or its staff and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the Mergers. Each party shall furnish all information concerning it as may reasonably be requested by the other party in connection with such actions and the preparation of the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement. Promptly after the Registration Statement is declared effective under the Securities Act, Parent will cause the Proxy Statement to be mailed to stockholders of Parent.
(b) Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) any response to comments of the SEC or its staff with respect to the Registration Statement and any amendment to the Registration Statement filed in response thereto. If Parent or the Company becomes aware that any information contained in the Registration Statement shall have become false or misleading in any material respect or that the Registration Statement is required to be amended in order to comply with applicable Law, then (i) such party shall promptly inform the other parties and (ii) Parent, on the one hand, and the Company, on the other hand, shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) an amendment or supplement to the Registration Statement. Parent and the Company shall use reasonable best efforts to cause the Registration Statement as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of shares of Parent Common Class A Stock, as applicable, in each case pursuant to applicable Law and subject to the terms and conditions of this Agreement and the Parent Organizational Documents. Each of Parent and the Company shall provide the other party with copies of any written comments, and shall inform such other parties of any oral comments, that Parent or the Company, as applicable, receives from the SEC or its staff with respect to the Registration Statement promptly after the receipt of such comments and shall give the other party a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior to responding to the SEC or its staff.
(c) Parent agrees to include provisions in the Proxy Statement and to take reasonable action related thereto, with respect to the: (i) approval of this Agreement and the transactions contemplated hereby, including Business Combination (as defined in the Mergers Certificate of Incorporation) (the “Transaction Proposal”); (ii) approval of the Parent A&R Charter (the “Amendment Proposal”) and each change to the Parent A&R Charter that is required to be separately approved; (iii) approval of the issuance of shares of Parent Common Class A Stock as Per Share Company Common Stock Consideration and Per Share Company Preferred Stock Consideration and the issuance of shares of Parent Common Stock in connection with the Convertible Note Financing pursuant to Section 3.01 under applicable Nasdaq rules (the “Issuance Proposal”); (iv) approval and adoption of the Parent Incentive Plan (the “Parent Incentive Plan Proposal”), the Parent Earn Out Plan (the “Parent Earn Out Plan Proposal”) and the Parent ESPP (the “Parent ESPP Proposal”); (v) election of the Board Nominees members of the board of directors of Parent in accordance with Section 8.07 8.08 (the “Election Proposal”); and (vi) adjournment of the Special Meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the Mergers for any reason (the “Adjournment Proposal”), and (vii) approval of any other proposals reasonably agreed by Parent and the Company to be necessary or appropriate in connection with the transactions contemplated hereby (the “Additional Proposal” and, collectively with the Transaction Proposal, the Amendment Proposal, the Issuance Proposal, the Election Proposal, the Parent Incentive Plan Proposal, the Parent Earn Out Plan Proposal, Proposal and the Parent ESPP Proposal, and the Adjournment Proposal, the “Proposals”). Without the prior written consent of the Company, the Proposals shall be the only matters (other than procedural matters) which Parent shall propose to be acted on by Parent’s stockholders at the Special Meeting.
(d) Parent shall use reasonable best efforts to, as promptly as practicable: (i) establish the record date for, duly call, give notice of, convene and hold the Special Meeting in accordance with the DGCL; (ii) cause the Proxy Statement to be disseminated to Parent’s stockholders in compliance with applicable Law, including the DGCL; and (iii) solicit proxies from the holders of Parent Common Class A Stock to vote in accordance with the recommendation of the Parent Board with respect to each of the Proposals. Parent shall, through the Parent Board, recommend to its stockholders that they approve the Proposals (the “Parent Board Recommendation”) and shall include the Parent Board Recommendation in the Proxy Statement, unless the Parent Board shall have changed the recommendation in accordance with Section 9.03(e9.02(e).
(e) The Parent Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Board Recommendation (a “Parent Change in Recommendation”). Notwithstanding anything in this Section 9.03 9.02 to the contrary, if, at any time prior to obtaining the Parent Stockholder Approval, the Parent Board determines in good faith, after consultation with its outside legal counsel, that in response to a Parent Intervening Event, the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Parent Board may, prior to obtaining the Parent Stockholder Approval, make a Parent Change in Recommendation; provided, however, that Parent shall not be entitled to make, or agree or resolve to make, a Parent Change in Recommendation unless (i) Parent delivers to the Company a written notice (a “Parent Intervening Event Notice”) advising the Company that the Parent Board proposes to take such action and containing the material facts underlying the Parent Board’s determination that a Parent Intervening Event has occurred, and (ii) at or after 5:00 p.m., New York City time, on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. New York City time on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (it being understood that any material development with respect to a Parent Intervening Event shall require a new notice but with an additional three Business Day (instead of four Business Day) period from the date of such notice, the “Parent Intervening Event Notice Period”)), the Parent Board reaffirms in good faith (after consultation with its outside legal counsel and financial advisor) that the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law. If requested by the Company, Parent will, and will use its reasonable best efforts to cause its Representatives to, during the Parent Intervening Event Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments in the terms and conditions of this Agreement so as to obviate the need for a Parent Change in Recommendation.
(f) Notwithstanding the foregoing provisions of this Section 9.039.02, if on a date for which the Special Meeting is scheduled, (i) Parent has not received proxies representing a sufficient number of shares of Parent Common Class A Stock to obtain the Parent Stockholder Approval, whether or not a quorum is present or (ii) any supplement or amendment to the Registration Statement or Proxy Statement is required by applicable Laws to be disseminated pursuant to Section 9.03(b)present, Parent shall have the right to (and at the Company’s request will) make one or more successive postponements or adjournments of the Special Meeting Meeting; (it being understood that, in the event of any postponement or adjournment pursuant to the foregoing, the Special Meeting shall not be held later than five three Business Days prior to the outside dateTermination Date); provided, however, that Parent shall not, without the prior written consent of the Company, not postpone or adjourn the Special Meeting more than two times and, in no event without the prior written consent of the Company, shall any postponement or adjournment be made that would require that a new record date for the Special Meeting be establishedthree times.
Appears in 1 contract
Preparation of Registration Statement; Special Meeting. (a) As promptly as practicable following the execution and delivery of this Agreement, Parent shall prepare, with the assistance of the Company, and cause to be filed with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the Parent Common Class A Stock to be issued under this Agreement, which Registration Statement will constitute a prospectus under the Securities Act and will also contain the Proxy Statement and Consent Solicitation Statement. Each of Parent and the Company shall use its reasonable best efforts to cause the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement to comply with the rules and regulations promulgated by the SEC, to respond as promptly as practicable to any comments of the SEC or its staff and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the Mergers. Each party shall furnish all information concerning it as may reasonably be requested by the other party in connection with such actions and the preparation of the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement. Promptly after the Registration Statement is declared effective under the Securities Act, Parent will cause the Proxy Statement to be mailed to stockholders of Parent.
(b) Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) any response to comments of the SEC or its staff with respect to the Registration Statement and any amendment to the Registration Statement filed in response thereto. If Parent or the Company becomes aware that any information contained in the Registration Statement shall have become false or misleading in any material respect or that the Registration Statement is required to be amended in order to comply with applicable Law, then (i) such party shall promptly inform the other parties and (ii) Parent, on the one hand, and the Company, on the other hand, shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) an amendment or supplement to the Registration Statement. Parent and the Company shall use reasonable best efforts to cause the Registration Statement as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of shares of Parent Common Class A Stock, as applicable, in each case pursuant to applicable Law and subject to the terms and conditions of this Agreement and the Parent Organizational Documents. Each of Parent and the Company shall provide the other party with copies of any written comments, and shall inform such other parties of any oral comments, that Parent or the Company, as applicable, receives from the SEC or its staff with respect to the Registration Statement promptly after the receipt of such comments and shall give the other party a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior to responding to the SEC or its staff.
(c) Parent agrees to include provisions in the Proxy Statement and to take reasonable action related thereto, with respect to the: (i) approval of this Agreement and the transactions contemplated hereby, including Business Combination (as defined in the Mergers Certificate of Incorporation) (the “Transaction Proposal”); (ii) approval of the Parent A&R Charter (the “Amendment Proposal”) and each change to the Parent A&R Charter that is required to be separately approved; (iii) approval of the issuance of shares of Parent Common Class A Stock as Per Share Company Common Stock Consideration and Per Share Company Preferred Stock Consideration and the issuance of shares of Parent Common Stock in connection with the Convertible Note Financing pursuant to Section 3.01 under applicable Nasdaq rules (the “Issuance Proposal”); (iv) approval and adoption of the Parent Incentive Plan (the “Parent Incentive Plan Proposal”), ; (v) approval and adoption of the Parent Earn Out Performance Plan (the “Parent Earn Out Performance Plan Proposal”) and the Parent ESPP (the “Parent ESPP Proposal”); (vvi) election of the Board Nominees members of the board of directors of Parent in accordance with Section 8.07 8.08 (the “Election Proposal”); (vi) adjournment of the Special Meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the Mergers for any reason (the “Adjournment Proposal”), and (vii) approval of any other proposals reasonably agreed by Parent and the Company to be necessary or appropriate in connection with the transactions contemplated hereby (the “Additional Proposal” and, collectively with the Transaction Proposal, the Amendment Proposal, the Issuance Proposal, the Election Proposal, the Parent Incentive Plan Proposal, Proposal and the Parent Earn Out Performance Plan Proposal, the Parent ESPP Proposal, and the Adjournment Proposal, the “Proposals”). Without the prior written consent of the Company, the Proposals shall be the only matters (other than procedural matters) which Parent shall propose to be acted on by Parent’s stockholders at the Special Meeting.
(d) Parent shall use reasonable best efforts to, as promptly as practicable: (i) establish the record date for, duly call, give notice of, convene and hold the Special Meeting in accordance with the DGCL; (ii) cause the Proxy Statement to be disseminated to Parent’s stockholders in compliance with applicable Law, including the DGCL; and (iii) solicit proxies from the holders of Parent Common Class A Stock to vote in accordance with the recommendation of the Parent Board with respect to each of the Proposals. Parent shall, through the Parent Board, recommend to its stockholders that they approve the Proposals (the “Parent Board Recommendation”) and shall include the Parent Board Recommendation in the Proxy Statement, unless the Parent Board shall have changed the recommendation in accordance with Section 9.03(e9.02(e).
(e) The Parent Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Board Recommendation (a “Parent Change in Recommendation”). Notwithstanding anything in this Section 9.03 9.02 to the contrary, if, at any time prior to obtaining the Parent Stockholder Approval, the Parent Board determines in good faith, after consultation with its outside legal counsel, that in response to a Parent Intervening Event, the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Parent Board may, prior to obtaining the Parent Stockholder Approval, make a Parent Change in Recommendation; provided, however, that Parent shall not be entitled to make, or agree or resolve to make, a Parent Change in Recommendation unless (i) Parent delivers to the Company a written notice (a “Parent Intervening Event Notice”) advising the Company that the Parent Board proposes to take such action and containing the material facts underlying the Parent Board’s determination that a Parent Intervening Event has occurred, and (ii) at or after 5:00 p.m., New York City time, on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. New York City time on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (it being understood that any material development with respect to a Parent Intervening Event shall require a new notice but with an additional three Business Day (instead of four Business Day) period from the date of such notice, the “Parent Intervening Event Notice Period”)), the Parent Board reaffirms in good faith (after consultation with its outside legal counsel and financial advisor) that the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law. If requested by the Company, Parent will, and will use its reasonable best efforts to cause its Representatives to, during the Parent Intervening Event Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments in the terms and conditions of this Agreement so as to obviate the need for a Parent Change in Recommendation.
(f) Notwithstanding the foregoing provisions of this Section 9.039.02, if on a date for which the Special Meeting is scheduled, (i) Parent has not received proxies representing a sufficient number of shares of Parent Common Class A Stock to obtain the Parent Stockholder Approval, whether or not a quorum is present or present, (ii) additional time for any supplement supplemental or amendment to the Registration Statement or Proxy Statement is additional disclosure required by applicable Laws to be disseminated pursuant to Section 9.03(b)the Parent Stockholders is required to be so disseminated and reviewed by the Company Stockholders or (iii) Parent is required to postpone or adjourn the Parent Stockholder Meeting by applicable law, order or a request from the SEC or its staff, Parent shall have the right to (to, and at if requested by the Company’s request will) Company Parent shall, make one or more successive postponements or adjournments of the Special Meeting for no more than ten Business Days (per such postponement or adjournment, as applicable) later than the most recently postponed or adjourned meeting date or to a date as may be agreed between Parent and the Company acting reasonably (it being understood that, in the event of any postponement or adjournment pursuant to the foregoing, the Special Meeting shall not be held later than five three Business Days prior to the outside dateTermination Date); provided, however, that (A) Parent shall not, without the prior written consent of the Company, not postpone or adjourn the Special Meeting more than two times andpursuant to clause (i) hereof, in no event without (B) the prior written consent Company may not request the postponement or adjournment of the Company, shall Special Meeting more than once and (C) any postponement or adjournment be made that would of the Special Meeting shall not require that a new Parent to modify the previously established record date for the Special Meeting be establishedMeeting.
Appears in 1 contract
Preparation of Registration Statement; Special Meeting. (a) As promptly as practicable following the execution and delivery of this Agreement, Parent shall prepare, with the assistance of the Company, and cause to be filed with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement and the Consent Solicitation Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of all the Parent Common Stock and Parent Special Voting Common Stock to be issued under this Agreement, which Registration Statement will constitute a prospectus under the Securities Act and will also contain the Proxy Statement and the Consent Solicitation Statement. Each of Parent and the Company shall use its reasonable best efforts to cause the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement to comply with the rules and regulations promulgated by the SEC, to respond as promptly as practicable to any comments of the SEC or its staff and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the Mergers. Each party shall furnish all information concerning it as may reasonably be requested by the other party in connection with such actions and the preparation of the Registration Statement, the Proxy Statement and the Consent Solicitation Statement. Promptly after the Registration Statement is declared effective under the Securities Act, Parent will cause the Proxy Statement to be mailed to stockholders of Parent.
(b) Each of Parent and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) any response to comments of the SEC or its staff with respect to the Registration Statement and any amendment to the Registration Statement filed in response thereto. If Parent or the Company becomes aware that any information contained in the Registration Statement shall have become false or misleading in any material respect or that the Registration Statement is required to be amended in order to comply with applicable Law, then (i) such party shall promptly inform the other parties and (ii) Parent, on the one hand, and the Company, on the other hand, shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) an amendment or supplement to the Registration Statement. Parent and the Company shall use reasonable best efforts to cause the Registration Statement as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of shares of Parent Common Class A Stock, as applicable, in each case pursuant to applicable Law and subject to the terms and conditions of this Agreement and the Parent Organizational Documents. Each of Parent and the Company shall provide the other party with copies of any written comments, and shall inform such other parties of any oral comments, that Parent or the Company, as applicable, receives from the SEC or its staff with respect to the Registration Statement promptly after the receipt of such comments and shall give the other party a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior to responding to the SEC or its staff.
(c) Parent agrees to include provisions in the Proxy Statement and to take reasonable action related thereto, with respect to the: (i) approval of this Agreement and the transactions contemplated hereby, including Business Combination (as defined in the Mergers Certificate of Incorporation) (the “Transaction Proposal”); (ii) approval of the Parent A&R Charter (the “Amendment Proposal”) and each change to the Parent A&R Charter that is required to be separately approved; (iii) approval of the issuance of shares of Parent Common Stock as Per Share Company and Parent Special Voting Common Stock Consideration and Per Share Company Preferred Stock Consideration and the issuance of shares of Parent Common Stock in connection with the Convertible Note Financing pursuant to Section 3.01 under applicable Nasdaq rules (the “Issuance Proposal”); (iv) approval and adoption of the Management Equity Incentive Plan as described in Section 9.06 (the “Management Equity Incentive Plan Proposal”); (v) approval and adoption of the Parent Incentive Plan (the “Parent Incentive Plan Proposal”), the Parent Earn Out Plan (the “Parent Earn Out Plan Proposal”) and the Parent ESPP (the “Parent ESPP Proposal”); (vvi) election of the members of the Parent Board Nominees in accordance with Section 8.07 until the earlier of the consummation of the Transaction and the 2023 annual meeting of stockholders of Parent, and until their respective successors are duly elected and qualified to serve (the “Election Proposal”); (vi) adjournment of the Special Meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the Mergers for any reason (the “Adjournment Proposal”), and (vii) approval of any other proposals reasonably agreed by Parent and the Company to be necessary or appropriate in connection with the transactions contemplated hereby (the “Additional Proposal” and, collectively with the Transaction Proposal, the Amendment Proposal, the Issuance Proposal, the Election Proposal, the Parent Incentive Plan Proposal, the Parent Earn Out Plan Proposal, Proposal and the Parent ESPP Proposal, and the Adjournment Proposal, the “Proposals”). Without the prior written consent of the Company, the Proposals shall be the only matters (other than procedural matters) which Parent shall propose to be acted on by Parent’s stockholders at the Special Meeting.
(d) Parent shall use reasonable best efforts to, as promptly as practicable: (i) establish the record date for, duly call, give notice of, convene and hold the Special Meeting in accordance with the DGCL; (ii) cause the Proxy Statement to be disseminated to Parent’s stockholders in compliance with applicable Law, including the DGCL; and (iii) solicit proxies from the holders of Parent Common Class A Stock and Parent Class F Stock to vote in accordance with the recommendation of the Parent Board with respect to each of the Proposals. Parent shall, through the Parent Board, recommend to its stockholders that they approve the Proposals (the “Parent Board Recommendation”) and shall include the Parent Board Recommendation in the Proxy Statement, unless the Parent Board shall have changed the recommendation in accordance with Section 9.03(e9.02(e).
(e) The Parent Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Board Recommendation (a “Parent Change in Recommendation”). Notwithstanding anything in this Section 9.03 9.02 to the contrary, if, at any time prior to obtaining the Parent Stockholder Approval, the Parent Board determines in good faith, after consultation with its outside legal counsel, that in response to a Parent Intervening Event, the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Parent Board may, prior to obtaining the Parent Stockholder Approval, make a Parent Change in Recommendation; provided, however, that Parent shall not be entitled to make, or agree or resolve to make, a Parent Change in Recommendation unless (i) Parent delivers to the Company a written notice (a “Parent Intervening Event Notice”) advising the Company that the Parent Board proposes to take such action and containing the material facts underlying the Parent Board’s determination that a Parent Intervening Event has occurred, and (ii) at or after 5:00 p.m., New York City time, on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. New York City time on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (it being understood that any material development with respect to a Parent Intervening Event shall require a new notice but with an additional three Business Day (instead of four Business Day) period from the date of such notice, the “Parent Intervening Event Notice Period”)), the Parent Board reaffirms in good faith (after consultation with its outside legal counsel and financial advisor) that the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law. If requested by the Company, Parent will, and will use its reasonable best efforts to cause its Representatives to, during the Parent Intervening Event Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments in the terms and conditions of this Agreement so as to obviate the need for a Parent Change in Recommendation.
(f) Notwithstanding the foregoing provisions of this Section 9.039.02, if on a date for which the Special Meeting is scheduled, (i) Parent has not received proxies representing a sufficient number of shares of Parent Common Class A Stock and Parent Class F Stock to obtain the Parent Stockholder Approval, whether or not a quorum is present or (ii) any supplement or amendment to the Registration Statement or Proxy Statement is required by applicable Laws to be disseminated pursuant to Section 9.03(b)present, Parent shall have the right to (and at the Company’s request will) make one or more successive postponements or adjournments of the Special Meeting Meeting; (it being understood that, in the event of any postponement or adjournment pursuant to the foregoing, the Special Meeting shall not be held later than five three Business Days prior to the outside dateTermination Date); provided, however, that Parent shall not, without the prior written consent of the Company, not postpone or adjourn the Special Meeting more than two times and, three times.
(g) If any tax opinion (including an “Exhibit 8.1” tax opinion) is required to be filed with the SEC to support the discussion in no event without the prior written consent Registration Statement of the anticipated U.S. federal income tax consequences of the Mergers to the Company Stockholders, each of Parent and the Company shall cooperate and use commercially reasonable efforts to enable the Company’s tax counsel to render any such tax opinion, shall any postponement or adjournment be made that would require that a new record date for including by delivering to the Special Meeting be establishedCompany’s tax counsel customary tax representation certificates.
Appears in 1 contract
Preparation of Registration Statement; Special Meeting. (a) As promptly as practicable Promptly following the execution and delivery of this Agreementdate hereof, Parent Acquiror shall prepare, with the assistance of the Company, and cause to be filed with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the Parent PubCo’s Common Stock to be issued under this AgreementAgreement and Acquiror Common Stock issued to Sponsors in a private placement simultaneously with the consummation of Acquiror’s initial public offering, which Registration Statement will constitute a prospectus under the Securities Act and will also contain the Proxy Statement and Consent Solicitation Statement. Each of Parent Acquiror and the Company shall use its reasonable best efforts to cause the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement to comply with the rules and regulations promulgated by the SEC, to respond as promptly as practicable to any comments of the SEC or its staff and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the MergersMerger. Each party shall furnish Acquiror acknowledges that the Company has furnished all information concerning it the Company as may reasonably be requested by the other party Acquiror in connection with such actions and the preparation of the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement. Promptly after the Registration Statement is declared effective under the Securities Act, Parent Acquiror will cause the Proxy Statement to be mailed to stockholders of ParentAcquiror.
(b) Each of Parent Acquiror and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned withheld or delayed) ), any response to comments of the SEC or its staff with respect to the Registration Statement and any amendment to the Registration Statement filed in response thereto. If Parent Acquiror or the Company becomes aware that any information contained in the Registration Statement shall have become false or misleading in any material respect or that the Registration Statement is required to be amended in order to comply with applicable Law, then (i) such party shall promptly inform the other parties and (ii) ParentAcquiror, on the one hand, and the Company, on the other hand, shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned withheld or delayed) an amendment or supplement to the Registration Statement. Parent Acquiror and the Company shall use reasonable best efforts to cause the Registration Statement Statement, as so amended or supplemented, to be filed with the SEC and the Proxy Statement to be disseminated to the holders of shares of Parent Acquiror Common Stock, as applicable, in each case pursuant to applicable Law and subject to the terms and conditions of this Agreement and the Parent Acquiror Organizational Documents. Each of Parent and the Company Acquiror shall provide the other party parties with copies of any written comments, and shall inform such other parties of any oral comments, that Parent or the Company, as applicable, Acquiror receives from the SEC or its staff with respect to the Registration Statement promptly after the receipt of such comments and shall give the other party parties a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior to responding to the SEC or its staff.
(c) Parent Acquiror agrees to include provisions in the Proxy Statement and to take reasonable action related thereto, thereto with respect to the: (i) approval of this Agreement the Merger and the transactions contemplated hereby, including the Mergers Transactions (the “Transaction Proposal”); , (ii) approval of the Parent A&R PubCo Charter (the “Amendment Proposal”) and each change to the Parent A&R Charter that is required to be separately approved; ), (iii) approval of the issuance of shares of Parent Common Stock as Per Share Company Common Stock Consideration and Per Share Company Preferred Stock Consideration and the issuance of shares of Parent PubCo’s Common Stock in connection with the Convertible Note Financing under applicable Transactions in accordance with this Agreement, in each case to the extent required by Nasdaq listing rules (the “Stock Issuance Proposal”); , (iv) approval and the adoption of the Parent Incentive Plan Acquiror LTIP (the “Parent Incentive Plan Proposal”), the Parent Earn Out Plan (the “Parent Earn Out Plan Acquiror LTIP Proposal”) and the Parent ESPP (the “Parent ESPP Proposal”); (v) election of the Board Nominees in accordance with Section 8.07 (the “Election Proposal”); (vi) adjournment of the Special Meeting to a later date or dates if it is determined by Parent and the Company that additional time is necessary to consummate the Mergers for any reason (the “Adjournment Proposal”), and (vii) approval of any other proposals reasonably agreed by Parent and the Company to be necessary or appropriate in connection with to consummate the transactions transaction contemplated hereby (the “Additional Proposal” and, collectively and together with the Transaction Agreement Proposal, the Merger Proposal, Amendment Proposal, the Issuance Proposal, the Election Proposal, the Parent Incentive Plan Proposal, the Parent Earn Out Plan Proposal, the Parent ESPP Proposal, Acquiror LTIP Proposal and the Adjournment Stock Issuance Proposal, the “Proposals”). The Acquiror LTIP Proposal shall provide that an aggregate number of shares of PubCo’s Common Stock equal to 10% of the outstanding shares of PubCo’s Common Stock as of Closing shall be reserved for issuance pursuant to the Acquiror LTIP. Without the prior written consent of the Company, the Proposals shall be the only matters (other than procedural matters) which Parent Acquiror shall propose to be acted on by ParentAcquiror’s stockholders at the Special Meeting.
(d) Parent Acquiror and the Company shall use reasonable best efforts to, as promptly as practicable: , and in compliance with applicable Law (i) establish the record date for, duly call, give notice of, convene and hold the Special Meeting in accordance with the DGCL; , (ii) cause the Proxy Statement to be disseminated to ParentAcquiror’s stockholders in compliance with applicable Law, including the DGCL; and (iii) solicit proxies from the holders of Parent Acquiror Common Stock to vote in accordance with the recommendation favor of the Parent Board with respect to each of the Proposals. Parent Acquiror shall, through the Parent Acquiror Board, recommend to its stockholders that they approve each of the Proposals (the “Parent Acquiror Board Recommendation”) and shall include the Parent unqualified Acquiror Board Recommendation in the Proxy Statement, unless the Parent Board shall have changed the recommendation in accordance with Section 9.03(e).
(e) . The Parent Acquiror Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Acquiror Board Recommendation (a “Parent Change in Recommendation”). Notwithstanding anything in this Section 9.03 to the contrary, if, at any time prior to obtaining the Parent Stockholder Approval, the Parent Board determines in good faith, after consultation with its outside legal counsel, that in response to a Parent Intervening Event, the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Parent Board may, prior to obtaining the Parent Stockholder Approval, make a Parent Change in Recommendation; provided, however, that Parent shall not be entitled to make, or agree or resolve to make, a Parent Change in Recommendation unless (i) Parent delivers to the Company a written notice (a “Parent Intervening Event Notice”) advising the Company that the Parent Board proposes to take such action and containing the material facts underlying the Parent Board’s determination that a Parent Intervening Event has occurred, and (ii) at or after 5:00 p.m., New York City time, on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. New York City time on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (it being understood that any material development with respect to a Parent Intervening Event shall require a new notice but with an additional three Business Day (instead of four Business Day) period from the date of such notice, the “Parent Intervening Event Notice Period”)), the Parent Board reaffirms in good faith (after consultation with its outside legal counsel and financial advisor) that the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law. If requested by the Company, Parent will, and will use its reasonable best efforts to cause its Representatives to, during the Parent Intervening Event Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments in the terms and conditions of this Agreement so as to obviate the need for a Parent Change in Recommendation.
(f) Notwithstanding the foregoing provisions of this Section 9.038.02(d), if on a date for which the Special Meeting is scheduled, (i) Parent Acquiror has not received proxies representing a sufficient number of shares of Parent Acquiror Common Stock to obtain the Parent Acquiror Stockholder Approval, whether or not a quorum is present or (ii) any supplement or amendment to the Registration Statement or Proxy Statement is required by applicable Laws to be disseminated pursuant to Section 9.03(b)present, Parent Acquiror shall have the right to (and at the Company’s request will) make one or more successive postponements or adjournments of the Special Meeting (it being understood that, in the event of any postponement or adjournment pursuant to the foregoing, the Special Meeting shall not be held later than five Business Days prior to the outside date); provided, that Parent shall not, without the prior written consent of the Company, postpone or adjourn the Special Meeting more than two times and, in no event without the prior written consent of the Company, shall any postponement or adjournment be made that would require that a new record date for the Special Meeting be establishedMeeting.
Appears in 1 contract
Preparation of Registration Statement; Special Meeting. (a) As promptly as practicable following the execution and delivery of this AgreementAgreement and the receipt by Pubco and SPAC of the PCAOB Audited Financial Statements for the years ended December 31, Parent 2021 and, as required by the rules and regulations promulgated by the SEC, December 31, 2022 and the Unaudited Interim Financial Statements, Pubco and SPAC shall prepare, with the assistance of the Company, and cause to be filed with the SEC by Pubco a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the Parent shares of Pubco Class A Common Stock and Pubco Preferred Stock to be issued under this Agreement, the Pubco Class A Common Stock issuable upon conversion of the Pubco Preferred Stock and the Pubco Warrants (and the Pubco Class A Common Stock issuable upon exercise thereof), which Registration Statement will constitute a prospectus under the Securities Act and will also contain the Proxy Statement and Consent Solicitation Statement. Each of Parent SPAC and the Company shall use its reasonable best efforts to cause the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement to comply with the rules and regulations promulgated by the SEC, to respond as promptly as practicable to any comments of the SEC or its staff and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the Mergers. Each party of SPAC and the Company shall furnish all information concerning it as may reasonably be requested by the other party in connection with such actions and the preparation of the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement. Promptly after the Registration Statement is declared effective under the Securities Act, Parent SPAC will cause the Proxy Statement to be mailed to stockholders of ParentSPAC. SPAC and the Company shall each pay 50% of all fees and expenses incurred in connection with the preparation and filing of the Registration Statement and the receipt of stock exchange approval in connection with the listing of Pubco Class A Common Stock and the Pubco Preferred Stock to be issued under this Agreement (including the Pubco Class A Common Stock issuable upon conversion of the Pubco Preferred Stock) and the Pubco Warrants (and the Pubco Class A Common Stock issuable upon exercise thereof), other than fees and expenses of advisors (which shall be borne by the party incurring such fees).
(b) Each of Parent SPAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) any response to comments of the SEC or its staff with respect to the Registration Statement and any amendment to the Registration Statement filed in response thereto. If Parent SPAC or the Company becomes aware that any information contained in the Registration Statement shall have become false or misleading in any material respect or that the Registration Statement is required to be amended in order to comply with applicable Law, then (i) such party shall promptly inform the other parties and (ii) ParentSPAC, on the one hand, and the Company, on the other hand, shall reasonably cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) an amendment or supplement to the Registration Statement. Parent SPAC and the Company shall use reasonable best efforts to cause the Registration Statement as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of shares of Parent SPAC Common Stock, as applicable, in each case pursuant to applicable Law and subject to the terms and conditions of this Agreement and the Parent SPAC Organizational Documents. Each of Parent and the Company and SPAC shall provide the other party parties with copies of any written comments, and shall inform such other parties of any oral comments, that Parent or the Company, as applicable, SPAC receives from the SEC or its staff with respect to the Registration Statement promptly after the receipt of such comments and shall give the other party parties a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior to responding to the SEC or its staff.
(c) Parent agrees SPAC and Pubco agree to include provisions in the Proxy Statement and to take reasonable action related thereto, with respect to the: (i) approval of this Agreement and the transactions contemplated herebyTransactions, including the Mergers Business Combination (as defined in the SPAC Organizational Documents) and the adoption and approval of this Agreement (the “Transaction Proposal”); , (ii) approval to the extent required by applicable Laws or the listing rules of the Parent A&R Charter (Approved Exchange on which the “Amendment Proposal”) and shares of SPAC Class A Common Stock are listed for trading, approval, on an advisory basis, of each material change to the Parent A&R Pubco Organizational Documents effected by the Pubco Delaware Charter and the Pubco Delaware Bylaws that is required to be separately approved; (iii) approval of the issuance of shares of Parent Common Stock as Per Share Company Common Stock Consideration and Per Share Company Preferred Stock Consideration and the issuance of shares of Parent Common Stock in connection with the Convertible Note Financing under applicable Nasdaq rules approved (the “Issuance Proposal”); (iv) approval and adoption of the Parent Incentive Plan (the “Parent Incentive Plan Pubco Organizational Documents Advisory Proposal”), the Parent Earn Out Plan (the “Parent Earn Out Plan Proposal”) and the Parent ESPP (the “Parent ESPP Proposal”); (v) election of the Board Nominees in accordance with Section 8.07 (the “Election Proposal”); (viiii) adjournment of the Special Meeting Meeting, if necessary, to a later date or dates if it is determined by Parent permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the Company that additional time is necessary to consummate the Mergers for any reason foregoing proposals (the “Adjournment Proposal”), ) and (viiiv) approval of any other proposals reasonably agreed by Parent SPAC and the Company to be necessary or appropriate in connection with the transactions contemplated hereby Transactions (the “Additional Proposal” and, collectively and together with the Transaction Proposal, the Amendment Proposal, the Issuance Proposal, the Election Proposal, the Parent Incentive Plan Proposal, the Parent Earn Out Plan Proposal, the Parent ESPP Pubco Organizational Documents Advisory Proposal, and the Adjournment Proposal, the “Proposals”). Without the prior written consent of the Company, the Proposals shall be the only matters (other than procedural matters) which Parent SPAC shall propose to be acted voted on by Parent’s stockholders the SPAC Stockholders at the Special Meeting.
(d) Parent SPAC shall use reasonable best efforts to, as promptly as practicable: (i) establish the record date for, duly call, give notice of, convene and hold the Special Meeting in accordance with the DGCL; applicable Laws. SPAC shall use reasonable best efforts to, as promptly as practicable after the Registration Statement is declared effective under the Securities Act, (iii) in any event within five (5) Business Days cause the Proxy Statement to be disseminated to Parent’s stockholders SPAC Stockholders in compliance with applicable Law, including the DGCL; and (iiiii) solicit proxies from the holders of Parent SPAC Common Stock to vote in accordance with the recommendation of the Parent SPAC Board with respect to each of the ProposalsProposals and (iii) in any event within twenty (20) Business Days hold the Special Meeting. Parent SPAC shall, through the Parent SPAC Board, recommend to its stockholders that they approve the Proposals (the “Parent SPAC Board Recommendation”) and shall include the Parent SPAC Board Recommendation in the Proxy Statement, unless the Parent Board shall have changed the recommendation in accordance with Section 9.03(e).
(e) . The Parent SPAC Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent SPAC Board Recommendation (any of the foregoing actions, a “Parent SPAC Board Change in Recommendation”). Notwithstanding anything , other than in this Section 9.03 to the contrary, if, at any time prior to obtaining event that the Parent Stockholder Approval, the Parent SPAC Board determines in good faith, after consultation with its outside legal counsel, that in response to an Intervening Event has occurred and that, as a Parent Intervening Eventresult thereof, the a failure to make a Parent SPAC Board Change in Recommendation would reasonably be inconsistent with expected to be a breach by the SPAC Board of its fiduciary duties obligations to the SPAC Stockholders under applicable Law, ; provided that the Parent SPAC Board may, prior to obtaining the Parent Stockholder Approval, make a Parent Change in Recommendation; provided, however, that Parent shall will not be entitled to make, or agree or resolve to make, a Parent SPAC Board Change in Recommendation unless (ix) Parent SPAC delivers to the Company a written notice (a an “Parent Intervening Event Notice”) advising the Company that the Parent SPAC Board proposes to take such action and containing the material facts underlying the Parent SPAC Board’s determination that a Parent an Intervening Event has occurredoccurred and that a failure to make a SPAC Board Change in Recommendation would reasonably be expected to constitute a breach by the SPAC Board of its fiduciary obligations under applicable Law (it being acknowledged that any Intervening Event Notice shall not itself constitute a breach of this Agreement), and (iiy) at or after 5:00 p.m., New York City time, on the fourth fifth (5th) Business Day immediately following the day on which Parent SPAC delivered the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. New York City time on the fourth fifth (5th) Business Day immediately following the day on which Parent SPAC delivered the Parent Intervening Event Notice (it being understood that any material development with respect to a Parent an Intervening Event shall require a new notice but with an additional three (3) Business Day (instead of four a five (5) Business Day) period from the date of such notice), the “Parent Intervening Event Notice Period”)), after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that the Company shall have, prior to the expiration of the Intervening Event Notice Period, offered to SPAC, the Parent SPAC Board reaffirms in good faith (after consultation with its outside legal counsel and financial advisorcounsel) that the failure to make a Parent SPAC Board Change in Recommendation would reasonably be inconsistent with expected to be a breach of its fiduciary duties under applicable Law. If ; provided, further, that, if requested by the Company, Parent during the Intervening Event Notice Period and prior to making a SPAC Board Change in Recommendation, SPAC will, and will use its reasonable best efforts to cause its Representatives to, during the Parent Intervening Event Notice Period, engage negotiate in good faith negotiations with the Company and its Representatives during the Intervening Event Notice Period to make such revisions or adjustments in to the terms and conditions of this Agreement so as to obviate the need for a Parent SPAC Board Change in Recommendation.
(f) Notwithstanding . SPAC may postpone, suspend or adjourn the foregoing provisions of this Section 9.03, if Special Meeting on a one or more occasions after the date for which the Special Meeting was originally scheduled upon the good faith determination by the SPAC Board that such postponement or adjournment, as the case may be, is scheduled, necessary to (i) Parent has not received solicit additional proxies representing a sufficient number of shares of Parent Common Stock to obtain the Parent SPAC Stockholder Approval, whether or not a quorum is present or (ii) obtain a quorum if one is not present at any then scheduled Special Meeting, (iii) ensure that any supplement or amendment to the Registration Statement or Proxy Statement that the SPAC Board has determined in good faith is required by applicable Laws Law is provided to be disseminated pursuant the SPAC Stockholders with adequate time for review prior to Section 9.03(b)the Special Meeting, Parent shall have the right to or (and at iv) with the Company’s request will) make one or more successive postponements or adjournments of the Special Meeting (it being understood thatprior written consent; provided, that in the event of any a postponement or adjournment pursuant to the foregoingclauses (i), (ii), or (iii) above, the Special Meeting shall not be held reconvened as promptly as practicable and in any event no later than five (5) Business Days prior to after the outside date); provided, date that Parent shall not, without the prior written consent of the Company, postpone or adjourn the Special Meeting more than two times and, in no event without the prior written consent of the Company, shall any postponement or adjournment be made that would require that a new record date for the Special Meeting be establishedsuch matters are resolved.
Appears in 1 contract
Samples: Agreement and Plan of Merger (FAST Acquisition Corp. II)
Preparation of Registration Statement; Special Meeting. (a) As promptly as practicable following the execution and delivery of this AgreementAgreement and the receipt by Pubco and SPAC of the PCAOB Audited Financial Statements and the Unaudited Interim Financial Statements, Parent Pubco and SPAC shall prepare, with the assistance of the Company, and cause to be filed with the SEC by Pubco a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of the Parent shares of Pubco Class A Common Stock to be issued under this AgreementAgreement as Per Share Consideration or SPAC Merger Consideration and the Pubco Warrants (and the Pubco Class A Common Stock issuable upon exercise thereof), which Registration Statement will constitute a prospectus under the Securities Act and will also contain the Proxy Statement and Consent Solicitation Statement. Each of Parent SPAC and the Company shall use its reasonable best efforts to cause the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement to comply with the rules and regulations promulgated by the SEC, to respond as promptly as practicable to any comments of the SEC or its staff and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the Mergers. Each party of SPAC and the Company shall furnish all information concerning it as may reasonably be requested by the other party in connection with such actions and the preparation of the Registration Statement, the Proxy Statement and the Consent Solicitation Proxy Statement. Promptly after the Registration Statement is declared effective under the Securities Act, Parent SPAC will cause the Proxy Statement to be mailed to stockholders of ParentSPAC. SPAC and the Company shall each pay 50% of all fees and expenses incurred in connection with the preparation and filing of the Registration Statement and the receipt of stock exchange approval in connection with the listing of SPAC Class A Common Stock to be issued as Per Share Consideration, SPAC Merger Consideration and the Pubco Warrants (and the Pubco Class A Common Stock issuable upon exercise thereof), other than fees and expenses of advisors (which shall be borne by the party incurring such fees).
(b) Each of Parent SPAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) any response to comments of the SEC or its staff with respect to the Registration Statement and any amendment to the Registration Statement filed in response thereto. If Parent SPAC or the Company becomes aware that any information contained in the Registration Statement shall have become false or misleading in any material respect or that the Registration Statement is required to be amended in order to comply with applicable Law, then (i) such party shall promptly inform the other parties and (ii) ParentSPAC, on the one hand, and the Company, on the other hand, shall reasonably cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) an amendment or supplement to the Registration Statement. Parent SPAC and the Company shall use reasonable best efforts to cause the Registration Statement as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of shares of Parent SPAC Common Stock, as applicable, in each case pursuant to applicable Law and subject to the terms and conditions of this Agreement and the Parent SPAC Organizational Documents. Each of Parent and the Company and SPAC shall provide the other party parties with copies of any written comments, and shall inform such other parties of any oral comments, that Parent or the Company, as applicable, SPAC receives from the SEC or its staff with respect to the Registration Statement promptly after the receipt of such comments and shall give the other party parties a reasonable opportunity to review and comment on any proposed written or oral responses to such comments prior to responding to the SEC or its staff.
(c) Parent agrees SPAC and Pubco agree to include provisions in the Proxy Statement and to take reasonable action related thereto, with respect to the: (i) approval of this Agreement and the transactions contemplated herebyTransactions, including the Mergers Business Combination (as defined in the SPAC Organizational Documents) and the adoption and approval of this Agreement (the “Transaction Proposal”); , (ii) to the extent required by applicable Securities Laws or the NYSE or Nasdaq listing rules, as applicable, approval of the Parent A&R Pubco Delaware Charter (and the “Amendment Proposal”) Pubco Delaware Bylaws and each change to the Parent A&R Charter Pubco Organizational Documents effected thereby that is required to be separately approved; , including any separate or unbundled advisory proposals as are required to implement the foregoing (the “Pubco Organizational Documents Proposal”), (iii) to the extent required by the NYSE or Nasdaq, as applicable, listing rules, approval of the issuance of shares of Parent the SPAC Class A Common Stock as Per Share Company Common Stock Consideration pursuant to the Subscription Agreements and Per Share Company Preferred Stock Consideration and the issuance of shares of Parent Common Stock in connection with the Convertible Note Financing under applicable Nasdaq rules this Agreement (the “Issuance Exchange Proposal”); , (iv) to the extent required by applicable Securities Laws or the NYSE or Nasdaq, as applicable, listing rules, the approval and adoption of the Parent Pubco Equity Incentive Plan (the “Parent Pubco Equity Incentive Plan Proposal”), (v) to the Parent Earn Out Plan (extent required by applicable Securities Laws or the “Parent Earn Out Plan Proposal”) NYSE or Nasdaq, as applicable, listing rules, the approval and adoption of the Parent Pubco ESPP (the “Parent Pubco ESPP Proposal”); (v) election of the Board Nominees in accordance with Section 8.07 (the “Election Proposal”); , (vi) adjournment of the Special Meeting Meeting, if necessary, to a later date or dates if it is determined by Parent permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the Company that additional time is necessary to consummate the Mergers for any reason foregoing proposals (the “Adjournment Proposal”), ) and (vii) approval of any other proposals reasonably agreed by Parent SPAC and the Company to be necessary or appropriate in connection with the transactions contemplated hereby Transactions (the “Additional Proposal” and, collectively and together with the Transaction Proposal, the Amendment Pubco Organizational Documents Proposal, the Issuance Exchange Proposal, the Election Proposal, the Parent Equity Incentive Plan Proposal, the Parent Earn Out Plan Proposal, the Parent Pubco ESPP Proposal, Proposal and the Adjournment Proposal, the “Proposals”). Without the prior written consent of the Company, the Proposals shall be the only matters (other than procedural matters) which Parent SPAC shall propose to be acted voted on by Parent’s stockholders the SPAC Stockholders at the Special Meeting.
(d) Parent SPAC shall use reasonable best efforts to, as promptly as practicable: practicable after the Registration Statement is declared effective under the Securities Act, (i) establish the record date for, duly call, give notice of, convene and hold the Special Meeting in accordance with the DGCL; Meeting, (ii) cause the Proxy Statement to be disseminated to Parent’s stockholders SPAC Stockholders in compliance with applicable Law, including the DGCL; Law and (iii) solicit proxies from the holders of Parent SPAC Common Stock to vote in accordance with the recommendation of the Parent SPAC Board with respect to each of the Proposals. Parent SPAC shall, through the Parent SPAC Board, recommend to its stockholders that they approve the Proposals (the “Parent SPAC Board Recommendation”) and shall include the Parent SPAC Board Recommendation in the Proxy Statement, unless the Parent Board shall have changed the recommendation in accordance with Section 9.03(e).
(e) . The Parent SPAC Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent SPAC Board Recommendation (a “Parent Change in Recommendation”). Notwithstanding anything in this Section 9.03 to SPAC may postpone the contrary, if, at any time prior to obtaining the Parent Stockholder Approval, the Parent Board determines in good faith, after consultation with its outside legal counsel, that in response to a Parent Intervening Event, the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Parent Board may, prior to obtaining the Parent Stockholder Approval, make a Parent Change in Recommendation; provided, however, that Parent shall not be entitled to makeSpecial Meeting, or agree or resolve to make, a Parent Change adjourn the Special Meeting opened in Recommendation unless (i) Parent delivers to accordance with the Company a written notice (a “Parent Intervening Event Notice”) advising the Company that the Parent Board proposes to take such action and containing the material facts underlying the Parent Board’s determination that a Parent Intervening Event has occurred, and (ii) at or after 5:00 p.m., New York City timeSPAC Organizational Documents, on the fourth one or more occasions for up to twenty (20) Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (such period from the time the Parent Intervening Event Notice is provided until 5:00 p.m. New York City time on the fourth Business Day immediately following the day on which Parent delivered the Parent Intervening Event Notice (it being understood that any material development with respect to a Parent Intervening Event shall require a new notice but with an additional three Business Day (instead of four Business Day) period from the date of such notice, the “Parent Intervening Event Notice Period”)), the Parent Board reaffirms in good faith (after consultation with its outside legal counsel and financial advisor) that the failure to make a Parent Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law. If requested by the Company, Parent will, and will use its reasonable best efforts to cause its Representatives to, during the Parent Intervening Event Notice Period, engage in good faith negotiations with the Company and its Representatives to make such adjustments Days in the terms and conditions of this Agreement so as to obviate aggregate after the need for a Parent Change in Recommendation.
(f) Notwithstanding the foregoing provisions of this Section 9.03, if on a date for which the Special Meeting was originally scheduled upon the good faith determination by the SPAC Board that such postponement or adjournment, as the case may be, is scheduled, necessary to (i) Parent has not received solicit additional proxies representing a sufficient number of shares of Parent Common Stock to obtain the Parent SPAC Stockholder Approval, whether or not a quorum is present or (ii) obtain a quorum if one is not present at any then scheduled Special Meeting, (iii) ensure that any supplement or amendment to the Registration Statement or Proxy Statement that is required by applicable Laws to be disseminated pursuant to Section 9.03(b), Parent shall have the right to (and at the Company’s request will) make one or more successive postponements or adjournments of the Special Meeting (it being understood that, in the event of any postponement or adjournment pursuant Law is provided to the foregoing, the Special Meeting shall not be held later than five Business Days SPAC Stockholders with adequate time for review prior to the outside date); providedSpecial Meeting, that Parent shall not, without the prior written consent of the Company, postpone or adjourn the Special Meeting more than two times and, in no event without the prior written consent of the Company, shall any postponement or adjournment be made that would require that a new record date for the Special Meeting be established(iv) otherwise take actions consistent with SPAC’s obligations under Section 8.01.
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