Proxy Material. (a) If approval of the Company Stockholders is required by Delaware Law in order to consummate the Merger other than pursuant to Section 253 of the DGCL, as soon as practicable following the Acceptance Time, the Company and Parent shall jointly prepare, and the Company shall file with the SEC, a proxy statement, letter to stockholders, notice of meeting and form of proxy accompanying the proxy statement that will be provided to the Company Stockholders in connection with the solicitation of proxies for use at the Company Stockholder Meeting, and any schedules required to be filed with the SEC in connection therewith (collectively, as amended or supplemented, the “Company Proxy Statement”). The Company and Parent, as the case may be, shall furnish all information concerning the Company or Parent as the other party hereto may reasonably request in connection with the preparation and filing with the SEC of the Company Proxy Statement. Subject to all applicable requirements under applicable Laws, the Company shall use commercially reasonable efforts to cause the Company Proxy Statement to be disseminated to the Company Stockholders as promptly as practicable following the filing thereof with the SEC. Each party hereto shall cause the Company Proxy Statement to, when filed with the SEC, comply as to form in all material respects with the applicable requirements of the Exchange Act. At the time the Company Proxy Statement or any amendment or supplement thereto is first mailed to the Company Stockholders and at the time of the Company Stockholder Meeting, the parties hereto will cause the Company Proxy Statement not to contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that notwithstanding the foregoing, no representation or warranty is made or covenant is agreed to by any party hereto with respect to information supplied by any other party hereto or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Company Proxy Statement. No filing of, or amendment or supplement to, or correspondence with the SEC or its staff with respect to the Company Proxy Statement shall be made by the Company without providing Parent and Merger Sub a reasonable opportunity to review and comment thereon. The Company shall advise Parent and Merger Sub, promptly after it receives notice thereof, of any request by the SEC or its staff for an amendment or revisions to the Company Proxy Statement, or comments thereon and responses thereto, or requests by the SEC or its staff for additional information in connection therewith. If at any time prior to the Company Stockholders’ Meeting, any information relating to the Company, Parent or Merger Sub, or any of their respective directors, officers or Affiliates, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Company Proxy Statement so that the Company Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party or parties hereto, as the case may be, and an appropriate amendment or supplement to the Company Proxy Statement describing such information shall be promptly prepared and filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company. The Company shall cause the Company Proxy Statement to comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and the Nasdaq Global Select Market. (b) In connection with the filing of the Company Proxy Statement, the Company, Parent and Merger Sub will cooperate to: (i) concurrently with the preparation and filing of the Company Proxy Statement, jointly prepare and file with the SEC any other documents required to be filed with the SEC relating to the Merger and the other transactions contemplated hereby and furnish to each other all information concerning such party as may be reasonably requested by the other party in connection with the preparation of the any such required documents; (ii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will consult with each other prior to providing such response; (iii) as promptly as reasonably practicable after consulting with each other, prepare and file any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law; (iv) have cleared by the SEC such documents; and (v) to the extent required by applicable Law, as promptly as reasonably practicable prepare, file and distribute to the stockholders of the Company any supplement or amendment to such documents if any event shall occur which requires such action at any time prior to the Company Stockholder Meeting. (c) Unless this Agreement is earlier terminated pursuant to Article X, subject to the terms of Section 8.6(d) hereof, the Company shall include in the Company Proxy Statement the Recommendation.
Appears in 2 contracts
Samples: Merger Agreement (Third Wave Technologies Inc /Wi), Merger Agreement (Hologic Inc)
Proxy Material. (a) If approval of As promptly as is reasonably practicable after the Company Stockholders is required by Delaware Law in order to consummate the Merger other than pursuant to Section 253 of the DGCL, as soon as practicable following the Acceptance Timedate hereof, the Company shall prepare and Parent shall jointly preparefile, or cause to be prepared and the Company shall file filed, with the SEC, a SEC the proxy statement, letter statement (together with the letters to stockholders, notice notices of meeting and form forms of proxy accompanying the proxy statement that will proxies to be provided distributed to the Company Stockholders stockholders in connection with the solicitation of proxies for use at the Company Stockholder Meeting, Merger and any schedules required to be filed with the SEC in connection therewith (collectively, as amended or supplemented, the “Company Proxy Statement”) which shall (i) except to the extent provided in Section 5.4(d). The Company and Parent, as include the case may be, shall furnish all information concerning the Company or Parent as the other party hereto may reasonably request in connection with the preparation and filing with the SEC recommendation of the Company Proxy Statement. Subject to all applicable requirements under applicable Laws, Board of Directors that the Company shall use commercially reasonable efforts to cause Company’s stockholders adopt this Agreement and the Company Proxy Statement to be disseminated to the Company Stockholders as promptly as practicable following the filing thereof with the SEC. Each party hereto shall cause the Company Proxy Statement to, when filed with the SEC, transactions contemplated hereunder and (ii) comply as to form in all material respects with the applicable requirements provisions of the Exchange Act. At the time Each of the Company and Parent shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments received from the SEC with respect to the Proxy Statement, and the Company shall cause the definitive Proxy Statement to be mailed to the Company’s stockholders promptly following the date on which the SEC staff advises that it has no further comments thereon or that the Company may commence mailing the Proxy Statement; provided that the Company shall provide written notice to Parent at least two (2) business days prior to the mailing of the Proxy Statement pursuant hereto. Each party shall promptly notify the other party upon the receipt by it or any of its Subsidiaries of any comments from the SEC or its staff, or any request from the SEC or its staff for amendments or supplements to the Proxy Statement, and shall provide the other party with copies of all correspondence between it or its Subsidiaries, on the one hand, and the SEC and its staff, on the other hand, relating to the Proxy Statement.
(b) The Company agrees that none of the information with respect to the Company or its Subsidiaries to be included in the Proxy Statement will, in the case of the Proxy Statement or any amendment amendments thereof or supplement thereto is first mailed to supplements thereto, at the Company Stockholders time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Company Stockholder Meeting, the parties hereto will cause the Company Proxy Statement not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that notwithstanding . Notwithstanding the foregoing, the Company assumes no representation or warranty is made or covenant is agreed to by any party hereto responsibility with respect to information supplied by any other party hereto or any of their officers, directors, representatives, agents or employees in writing specifically by or on behalf of Parent or Merger Sub for inclusion or incorporation by reference in the Company Proxy Statement. No filing of, or amendment or supplement to, or correspondence with the SEC or its staff with respect to the Company Proxy Statement shall be made by the Company without providing Parent and Merger Sub a reasonable opportunity to review and comment thereon. The Company shall advise Parent and Merger Sub, promptly after it receives notice thereof, of any request by the SEC or its staff for an amendment or revisions to the Company Proxy Statement, unless Parent has informed the Company in writing in a clear manner, within a reasonable time prior to its use, that such information should not be so included or comments thereon and responses thereto, or requests incorporated by the SEC or its staff for additional information in connection therewith. reference.
(c) If at any time prior to the Company Stockholders’ Meeting, any information relating to the Company, Parent or Parent, Merger Sub, Sub or any of their respective directors, officers or Affiliates, directors or officers should be discovered by the Company or Parent Parent, which should be set forth in an amendment or supplement to the Company Proxy Statement so that the Company Proxy Statement would shall not include contain any misstatement untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading, the party which that discovers such information (or the party whose Subsidiary discovers such information) shall promptly notify the other party or parties hereto, as the case may beparty, and an appropriate amendment amendment, supplement or supplement to other filing incorporated by reference into the Company Proxy Statement describing such information shall be promptly prepared and filed with the SEC and, to the extent required by applicable lawLaw, disseminated to the stockholders of the Company. The Company shall cause the Company Proxy Statement to comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and the Nasdaq Global Select Market.
(b) In connection with the filing of the Company Proxy Statement, the Company, Parent and Merger Sub will cooperate to: (i) concurrently with the preparation and filing of the Company Proxy Statement, jointly prepare and file with the SEC any other documents required to be filed with the SEC relating to the Merger and the other transactions contemplated hereby and furnish to each other all information concerning such party as may be reasonably requested by the other party in connection with the preparation of the any such required documents; (ii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will consult with each other prior to providing such response; (iii) as promptly as reasonably practicable after consulting with each other, prepare and file any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law; (iv) have cleared by the SEC such documents; and (v) to the extent required by applicable Lawcase, as promptly as reasonably practicable preparepracticable.
(i) The Company shall, file in accordance with the DGCL and distribute its certificate of incorporation and by-laws, duly call, give notice of, and, following the mailing of the Proxy Statement, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”) and shall, through the Board of Directors, recommend to its stockholders the adoption of this Agreement and the transactions contemplated hereunder (the “Company Recommendation”). The Company will use reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and the transactions contemplated hereunder. Except as expressly set forth in this Section 5.4, the Board of Directors shall not withdraw, amend or modify, or propose or resolve to withdraw, amend or modify in a manner adverse to Parent, the Company Recommendation. Notwithstanding the foregoing, the Board of Directors may withdraw, amend or modify the Company Recommendation (a “Company Change of Recommendation”) if the Board of Directors has concluded in good faith, after consultation with its outside legal counsel, that the failure of the Board of Directors to effect a Company Change of Recommendation would be inconsistent with such directors’ fiduciary duties under applicable Law; provided that if such Company Change of Recommendation is as a result of a Company Alternative Proposal, the Board of Directors shall have concluded in good faith after consultation with its outside financial and legal advisors that such Company Alternative Proposal is a Company Superior Proposal. In the event that, subsequent to the stockholders date of this Agreement and prior to the Company Meeting, there shall have been a Company Change of Recommendation, unless this Agreement is terminated by the Company or Parent, as the case may be, pursuant to Article VII, the Company shall nevertheless submit this Agreement to the holders of Company Common Stock for adoption at the Company Meeting.
(ii) No Company Change of Recommendation may be made until (A) at least three (3) business days have elapsed following Parent’s receipt of written notice from the Company advising Parent that management of the Company currently intends to recommend to the Board of Directors that it take such action and the basis therefor, including all information considered in making such decision and (B) the Company has (during such three (3) day period) given Parent the opportunity to propose to the Company revisions to the terms of the transactions contemplated by this Agreement, and the Company and its representatives shall have, if requested by Parent, negotiated in good faith with Parent regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by Parent. In determining whether to make a Company Change of Recommendation in response to a Company Superior Proposal or otherwise, the Board of Directors shall take into account any changes to the terms of this Agreement suggested by Parent and any other information provided by Parent in response to such notice. Any material amendment to any Company Alternative Proposal will be deemed to be a new Company Alternative Proposal for purposes of this Section 5.4.
(e) Notwithstanding anything in this Agreement to the contrary, the Company may adjourn or postpone the Company Meeting (i) to the extent necessary to ensure that any necessary supplement or amendment to the Proxy Statement is provided to its stockholders in advance of a vote on the Merger and this Agreement, or, if as of the time for which the Company Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such documents if any event shall occur which requires such action at any time prior Company Meeting or to obtain the Company Stockholder Meeting.
Approval and (cii) Unless for a period not to exceed five (5) business days upon the occurrence of a state of facts, event, circumstance, change or effect, which the Company determines in good faith could reasonably be likely to result in a Company Change of Recommendation; provided that the foregoing shall not affect Parent’s right to terminate this Agreement is earlier terminated pursuant to Article X, subject to the terms of Section 8.6(d) hereof, the Company shall include in the Company Proxy Statement the Recommendation7.1(c).
Appears in 2 contracts
Samples: Merger Agreement (At&t Inc.), Merger Agreement (Centennial Communications Corp /De)
Proxy Material. (a) If approval of the Company Stockholders is required by Delaware Law in order to consummate the Merger other than pursuant to Section 253 of the DGCL, as soon as practicable following the Acceptance Time, the Company and Parent shall jointly prepare, and the Company shall file with the SEC, a proxy statement, letter to stockholders, notice of meeting and form of proxy accompanying the proxy statement that will be provided to the Company Stockholders in connection with the solicitation of proxies for use at the Company Stockholder Meeting, and any schedules required to be filed with the SEC in connection therewith (collectively, as amended or supplemented, the “Company Proxy Statement”). The Company and Parent, as the case may be, shall furnish all information concerning the Company or Parent as the other party hereto may reasonably request in connection with the preparation and filing with the SEC of the Company Proxy Statement. Subject to all applicable requirements under applicable Laws, the Company shall use commercially reasonable efforts to cause the Company Proxy Statement to be disseminated to the Company Stockholders as promptly as practicable following the filing thereof with the SEC. Each party hereto shall cause the Company Proxy Statement to, when filed with the SEC, comply as to form in all material respects with the applicable requirements of the Exchange Act. At the time the Company Proxy Statement or any amendment or supplement thereto is first mailed to the Company Stockholders and at the time of the Company Stockholder Meeting, the parties hereto will cause the Company Proxy Statement not to contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that notwithstanding the foregoing, no representation or warranty is made or covenant is agreed to by any party hereto with respect to information supplied by any other party hereto or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Company Proxy Statement. No filing of, or amendment or supplement to, or correspondence with the SEC or its staff with respect to the Company Proxy Statement shall be made by the Company without providing Parent and Merger Sub a reasonable opportunity to review and comment thereon. The Company shall advise Parent and Merger Sub, promptly after it receives notice thereof, of any request by the SEC or its staff for an amendment or revisions to the Company Proxy Statement, or comments thereon and responses thereto, or requests by the SEC or its staff for additional information in connection therewith. If at any time prior to the Company Stockholders’ Meeting, any information relating to the Company, Parent or Merger Sub, or any of their respective directors, officers or Affiliates, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Company Proxy Statement so that the Company Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party or parties hereto, as the case may be, and an appropriate amendment or supplement to the Company Proxy Statement describing such information shall be promptly prepared and filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company. The Company shall cause the Company Proxy Statement to comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and the Nasdaq Global Select Market.
(bi) In connection with the filing of the Company Proxy StatementStockholder Meeting, the Company, Parent and Merger Sub Holding Company will cooperate to: (iA) concurrently with as promptly as reasonably practicable after the preparation and filing date of the Company Proxy Statement, jointly this Agreement prepare and file with the SEC any other documents required a proxy statement (as it may be amended or supplemented from time to be filed with time, the SEC relating “Proxy Statement”) related to the Merger and the other transactions contemplated hereby and furnish to each other all information concerning such party as may be reasonably requested by the other party in connection with the preparation consideration of the any such required documents; Stockholder Approval Matters at the Stockholder Meeting, (iiB) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will consult with each other prior to providing such response; such, (iiiC) as promptly as reasonably practicable after consulting with each other, prepare and file any amendments or supplements necessary to be filed in response to any SEC comments or as otherwise required by Law; law, (ivD) have cleared by mail to its stockholders as promptly as reasonably practicable the SEC Proxy Statement and all other customary proxy or other materials for meetings such documents; and as the Stockholder Meeting, (vE) to the extent required by applicable Lawlaw, as promptly as reasonably practicable prepare, file and distribute to the Holding Company stockholders of the Company any supplement or amendment to such documents the Proxy Statement if any event shall occur which requires such action at any time prior to the Stockholder Meeting, and (F) otherwise use commercially reasonable efforts to comply with all requirements of law applicable to any Stockholder Meeting. Subscriber shall cooperate with the Holding Company in connection with the preparation of the Proxy Statement and any amendments or supplements thereto, including promptly furnishing the Holding Company upon request with any and all information as may be required to be set forth in the Proxy Statement or any amendments or supplements thereto under applicable law. The Proxy Statement shall include the recommendation of the Board of Directors of the Holding Company that stockholders vote in favor of the approval of the Stockholder Approval Matters at the Stockholder Meeting.
(cii) Unless If, at any time prior to the Stockholder Meeting, any information relating to the Holding Company or Subscriber or any of their respective Affiliates should be discovered by the Holding Company or Subscriber which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties and, to the extent required by applicable law, the Holding Company shall disseminate an appropriate amendment thereof or supplement thereto describing such information to the Holding Company’s stockholders.
(iii) The Holding Company agrees that (A) none of the information included or incorporated by reference in the Proxy Statement or any other document filed with the SEC in connection with the transactions contemplated by this Agreement (all such other documents, the “Other Filings”) shall, in the case of the Proxy Statement, at the date it is earlier terminated pursuant to Article X, subject first mailed to the terms Holding Company’s stockholders or at the time of Section 8.6(dthe Stockholder Meeting or at the time of any amendment or supplement thereof, or, in the case of any Other Filing, at the date it is first mailed to the Holding Company’s stockholders or at the date it is first filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no covenant is made by the Holding Company with respect to statements made or incorporated by reference therein based on information supplied by the Buyers or any of their Affiliates or representatives in connection with the preparation of the Proxy Statement or the Other Filings for inclusion or incorporation by reference therein, and (B) hereof, the Proxy Statement and the Other Filings that are filed by the Holding Company shall include comply as to form in all material respects with the requirements of the Exchange Act.
(iv) Subscriber covenants that none of the information supplied in writing by or on behalf of Subscriber expressly for inclusion in the Company Proxy Statement or the RecommendationOther Filings will, in the case of the Proxy Statement, at the date it is first mailed to the Holding Company’s stockholders or at the time of the Stockholder Meeting or at the time of any amendment or supplement thereof, or, in the case of any Other Filing, at the date it is first mailed to the Holding Company’s stockholders or at the date it is first filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
Appears in 1 contract
Proxy Material. (a) If approval of the Company Stockholders is required by Delaware Law in order to consummate the Merger other than pursuant to Section 253 of the DGCL, as soon as practicable following the Acceptance Time, the Company and Parent shall jointly prepare, and the Company shall file with the SEC, a proxy statement, letter to stockholders, notice of meeting and form of proxy accompanying the proxy statement that will be provided to the Company Stockholders in connection with the solicitation of proxies for use at the Company Stockholder Meeting, and any schedules required to be filed with the SEC in connection therewith (collectively, as amended or supplemented, the “Company Proxy Statement”). The Company and Parent, as the case may be, shall furnish all information concerning the Company or Parent as the other party hereto may reasonably request in connection with the preparation and filing with the SEC of the Company Proxy Statement. Subject to all applicable requirements under applicable Laws, the Company shall use commercially reasonable efforts to cause the Company Proxy Statement to be disseminated to the Company Stockholders as promptly as practicable following the filing thereof with the SEC. Each party hereto shall cause the Company Proxy Statement to, when filed with the SEC, comply as to form in all material respects with the applicable requirements of the Exchange Act. At the time the Company Proxy Statement or any amendment or supplement thereto is first mailed to the Company Stockholders and at the time of the Company Stockholder Meeting, the parties hereto will cause the Company Proxy Statement not to contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that notwithstanding the foregoing, no representation or warranty is made or covenant is agreed to by any party hereto with respect to information supplied by any other party hereto or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Company Proxy Statement. No filing of, or amendment or supplement to, or correspondence with the SEC or its staff with respect to the Company Proxy Statement shall be made by the Company without providing Parent and Merger Sub a reasonable opportunity to review and comment thereon. The Company shall advise Parent and Merger Sub, promptly after it receives notice thereof, of any request by the SEC or its staff for an amendment or revisions to the Company Proxy Statement, or comments thereon and responses thereto, or requests by the SEC or its staff for additional information in connection therewith. If at any time prior to the Company Stockholders’ Meeting, any information relating to the Company, Parent or Merger Sub, or any of their respective directors, officers or Affiliates, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Company Proxy Statement so that the Company Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party or parties hereto, as the case may be, and an appropriate amendment or supplement to the Company Proxy Statement describing such information shall be promptly prepared and filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company. The Company shall cause the Company Proxy Statement to comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and the Nasdaq Global Select Market.
(bi) In connection with the filing of Stockholders Meeting, the Company Proxy Statement, will (A) as promptly as reasonably practicable after the Company, Parent and Merger Sub will cooperate to: (i) concurrently with the preparation and filing date of the Company Proxy Statement, jointly this Agreement prepare and file with the SEC any other documents required a proxy statement (as it may be amended or supplemented from time to be filed with time, the SEC relating “Proxy Statement”) related to the Merger and the other transactions contemplated hereby and furnish to each other all information concerning such party as may be reasonably requested by the other party in connection with the preparation consideration of the any such required documents; Proposals at the Stockholders Meeting, (iiB) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will consult with each other provide copies of such comments to those Buyers who have so requested in a writing delivered to the Company prior to providing the date hereof to be a Requesting Buyer for purposes of this Agreement (each such response; Buyer delivering such request is listed on Schedule 4(b) hereto and referred to herein as a “Requesting Buyer”) promptly upon receipt and copies of proposed responses to each Requesting Buyer a reasonable time prior to filing to allow meaningful comment, (iiiC) as promptly as reasonably practicable after consulting with each other, prepare and file any amendments or supplements necessary to be filed in response to any SEC comments or as otherwise required by Law; law, (ivD) have cleared by mail to its stockholders as promptly as reasonably practicable the SEC Proxy Statement and all other customary proxy or other materials for meetings such documents; and as the Stockholders Meeting, (vE) to the extent required by applicable Lawlaw, as promptly as reasonably practicable prepare, file and distribute to the Company stockholders of the Company any supplement or amendment to such documents the Proxy Statement if any event shall occur which requires such action at any time prior to the Stockholders Meeting, and (F) otherwise use commercially reasonable efforts to comply with all requirements of law applicable to any Stockholders Meeting. The Buyers shall cooperate with the Company Stockholder in connection with the preparation of the Proxy Statement and any amendments or supplements thereto, including promptly furnishing the Company upon request with any and all information as may be required to be set forth in the Proxy Statement or any amendments or supplements thereto under applicable law. The Company will provide each Requesting Buyer a reasonable opportunity to review and comment upon the Proxy Statement, or any amendments or supplements thereto, and shall give reasonable consideration to any such comments proposed, prior to mailing the Proxy Statement to the Company’s stockholders. The Proxy Statement shall include the recommendation of the Board that stockholders vote in favor of the adoption of all of the Proposals at the Stockholders Meeting.
(cii) Unless this Agreement is earlier terminated pursuant to Article XIf, subject at any time prior to the terms Stockholders Meeting, any information relating to the Company or Buyers or any of Section 8.6(d) hereoftheir respective Affiliates should be discovered by the Company or Buyers which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties and, to the extent required by applicable law, the Company shall include disseminate an appropriate amendment thereof or supplement thereto describing such information to the Company’s stockholders.
(iii) The Company agrees that (A) none of the information included or incorporated by reference in the Company Proxy Statement or any other document filed with the RecommendationSEC in connection with the transactions contemplated by this Agreement (all such other documents, the “Other Filings”) shall, in the case of the Proxy Statement, at the date it is first mailed to the Company’s stockholders or at the time of the Stockholders Meeting or at the time of any amendment or supplement thereof, or, in the case of any Other Filing, at the date it is first mailed to the Company’s stockholders or at the date it is first filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no covenant is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by the Buyers or any of their Affiliates or representatives in connection with the preparation of the Proxy Statement or the Other Filings for inclusion or incorporation by reference therein, and (B) the Proxy Statement and the Other Filings that are filed by the Company shall comply as to form in all material respects with the requirements of the 1934 Act.
(iv) Each of the Buyers covenants that none of the information supplied in writing by or on behalf of such Buyer expressly for inclusion in the Proxy Statement or the Other Filings will, in the case of the Proxy Statement, at the date it is first mailed to the Company’s stockholders or at the time of the Stockholders Meeting or at the time of any amendment or supplement thereof, or, in the case of any Other Filing, at the date it is first mailed to the Company’s stockholders or at the date it is first filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
Appears in 1 contract
Samples: Securities Purchase Agreement (Taylor Capital Group Inc)
Proxy Material. (a) If approval of the Company Stockholders is required by Delaware Law in order to consummate the Merger other than pursuant to Section 253 of the DGCL, as soon as practicable following the Acceptance Time, the Company and Parent shall jointly prepare, and the Company shall file with the SEC, a proxy statement, letter to stockholders, notice of meeting and form of proxy accompanying the proxy statement that will be provided to the Company Stockholders in connection with the solicitation of proxies for use at the Company Stockholder Meeting, and any schedules required to be filed with the SEC in connection therewith (collectively, as amended or supplemented, the “Company Proxy Statement”). The Company and Parent, as the case may be, shall furnish all information concerning the Company or Parent as the other party hereto may reasonably request in connection with the preparation and filing with the SEC of the Company Proxy Statement. Subject to all applicable requirements under applicable Laws, the Company shall use commercially reasonable efforts to cause the Company Proxy Statement to be disseminated to the Company Stockholders as promptly as practicable following the filing thereof with the SEC. Each party hereto shall cause the Company Proxy Statement to, when filed with the SEC, comply as to form in all material respects with the applicable requirements of the Exchange Act. At the time the Company Proxy Statement or any amendment or supplement thereto is first mailed to the Company Stockholders and at the time of the Company Stockholder Meeting, the parties hereto will cause the Company Proxy Statement not to contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that notwithstanding the foregoing, no representation or warranty is made or covenant is agreed to by any party hereto with respect to information supplied by any other party hereto or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Company Proxy Statement. No filing of, or amendment or supplement to, or correspondence with the SEC or its staff with respect to the Company Proxy Statement shall be made by the Company without providing Parent and Merger Sub a reasonable opportunity to review and comment thereon. The Company shall advise Parent and Merger Sub, promptly after it receives notice thereof, of any request by the SEC or its staff for an amendment or revisions to the Company Proxy Statement, or comments thereon and responses thereto, or requests by the SEC or its staff for additional information in connection therewith. If at any time prior to the Company Stockholders’ Meeting, any information relating to the Company, Parent or Merger Sub, or any of their respective directors, officers or Affiliates, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Company Proxy Statement so that the Company Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party or parties hereto, as the case may be, and an appropriate amendment or supplement to the Company Proxy Statement describing such information shall be promptly prepared and filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company. The Company shall cause the Company Proxy Statement to comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and the Nasdaq Global Select Market.
(bi) In connection with the filing of the Company Proxy StatementStockholder Meeting, the Company, Parent and Merger Sub Holding Company will cooperate to: (iA) concurrently with as promptly as reasonably practicable after the preparation and filing date of the Company Proxy Statement, jointly this Agreement prepare and file with the SEC any other documents required a proxy statement (as it may be amended or supplemented from time to be filed with time, the SEC relating “Proxy Statement”) related to the Merger and the other transactions contemplated hereby and furnish to each other all information concerning such party as may be reasonably requested by the other party in connection with the preparation consideration of the any such required documents; Automatic Conversion, (iiB) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will consult with each other prior to providing such response; thereto, (iiiC) as promptly as reasonably practicable after consulting with each other, prepare and file any amendments or supplements necessary to be filed in response to any SEC comments or as otherwise required by Law; law, (ivD) have cleared by mail to its stockholders as promptly as reasonably practicable the SEC Proxy Statement and all other customary proxy and other materials for meetings such documents; and as the Stockholder Meeting, (vE) to the extent required by applicable Lawlaw, as promptly as reasonably practicable prepare, file and distribute to the Holding Company stockholders of the Company any supplement or amendment to such documents the Proxy Statement if any event shall occur which requires such action at any time prior to the Company Stockholder Meeting, and (F) otherwise use commercially reasonable efforts to comply with all requirements of law applicable to any Stockholder Meeting. Subscriber shall cooperate with the Holding Company in connection with the preparation of the Proxy Statement and any amendments or supplements thereto, including promptly furnishing the Holding Company upon request with any and all information as may be required to be set forth in the Proxy Statement or any amendments or supplements thereto under applicable law. The Proxy Statement shall include the recommendation of the Board of Directors of the Holding Company that stockholders vote at the Stockholder Meeting in favor of the issuance of shares of the Conversion Shares upon conversion of the Series F Preferred Stock.
(cii) Unless this Agreement is earlier terminated pursuant to Article XIf, subject at any time prior to the terms Stockholder Meeting, any information relating to the Holding Company or Subscriber or any of Section 8.6(d) hereoftheir respective Affiliates should be discovered by the Holding Company or Subscriber which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties and, to the extent required by applicable law, the Holding Company shall include disseminate an appropriate amendment thereof or supplement thereto describing such information to the Holding Company’s stockholders.
(iii) The Holding Company agrees that (A) none of the information included or incorporated by reference in the Company Proxy Statement shall, at the Recommendationdate it is first mailed to the Holding Company’s stockholders or at the time of the Stockholder Meeting or at the time of any amendment or supplement thereof, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no covenant is made by the Holding Company with respect to statements made or incorporated by reference therein based on information supplied by the Buyers or any of their Affiliates or representatives in connection with the preparation of the Proxy Statement for inclusion or incorporation by reference therein, and (B) the Proxy Statement shall comply as to form in all material respects with the requirements of the Exchange Act.
(iv) Subscriber covenants that none of the information supplied in writing by or on behalf of Subscriber expressly for inclusion in the Proxy Statement will, at the date it is first mailed to the Holding Company’s stockholders or at the time of the Stockholder Meeting or at the time of any amendment or supplement thereof, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
Appears in 1 contract
Proxy Material. (a) If approval of the Company Stockholders is required by Delaware Law in order to consummate the Merger other than pursuant to Section 253 of the DGCL, as soon as practicable following the Acceptance Time, the Company and Parent shall jointly prepare, and the Company shall file with the SEC, a proxy statement, letter to stockholders, notice of meeting and form of proxy accompanying the proxy statement that will be provided to the Company Stockholders in connection with the solicitation of proxies for use at the Company Stockholder Meeting, and any schedules required to be filed with the SEC in connection therewith (collectively, as amended or supplemented, the “Company Proxy Statement”). The Company and Parent, as the case may be, shall furnish all information concerning the Company or Parent as the other party hereto may reasonably request in connection with the preparation and filing with the SEC of the Company Proxy Statement. Subject to all applicable requirements under applicable Laws, the Company shall use commercially reasonable efforts to cause the Company Proxy Statement to be disseminated to the Company Stockholders as promptly as practicable following the filing thereof with the SEC. Each party hereto shall cause the Company Proxy Statement to, when filed with the SEC, comply as to form in all material respects with the applicable requirements of the Exchange Act. At the time the Company Proxy Statement or any amendment or supplement thereto is first mailed to the Company Stockholders and at the time of the Company Stockholder Meeting, the parties hereto will cause the Company Proxy Statement not to contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that notwithstanding the foregoing, no representation or warranty is made or covenant is agreed to by any party hereto with respect to information supplied by any other party hereto or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Company Proxy Statement. No filing of, or amendment or supplement to, or correspondence with the SEC or its staff with respect to the Company Proxy Statement shall be made by the Company without providing Parent and Merger Sub a reasonable opportunity to review and comment thereon. The Company shall advise Parent and Merger Sub, promptly after it receives notice thereof, of any request by the SEC or its staff for an amendment or revisions to the Company Proxy Statement, or comments thereon and responses thereto, or requests by the SEC or its staff for additional information in connection therewith. If at any time prior to the Company Stockholders’ Meeting, any information relating to the Company, Parent or Merger Sub, or any of their respective directors, officers or Affiliates, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Company Proxy Statement so that the Company Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party or parties hereto, as the case may be, and an appropriate amendment or supplement to the Company Proxy Statement describing such information shall be promptly prepared and filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company. The Company shall cause the Company Proxy Statement to comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and the Nasdaq Global Select Market.
(bi) In connection with the filing of Company Shareholders Meeting, the Company Proxy Statement, will (A) as promptly as reasonably practicable after the Company, Parent and Merger Sub will cooperate to: (i) concurrently with the preparation and filing date of the Company Proxy Statement, jointly this Agreement prepare and file with the SEC any other documents required a proxy statement (as it may be amended or supplemented from time to be filed with time, the SEC relating “Proxy Statement”) related to the Merger and the other transactions contemplated hereby and furnish to each other all information concerning such party as may be reasonably requested by the other party in connection with the preparation consideration of the any such required documents; Proposals at the Company Shareholders Meeting, (iiB) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will consult with each other provide copies of such comments to Sterling promptly upon receipt and provide copies of proposed responses to Sterling a reasonable time prior to providing such response; filing to allow Sterling the opportunity to provide meaningful comment, (iiiC) as promptly as reasonably practicable after consulting with each other, prepare and file any amendments or supplements necessary to be filed in response to any SEC comments or as otherwise required by applicable Law; , (ivD) have cleared by mail to its shareholders as promptly as reasonably practicable the SEC Proxy Statement and all other customary proxy or other materials for meetings such documents; and as the Company Shareholders Meeting, (vE) to the extent required by applicable Law, as promptly as reasonably practicable prepare, file and distribute to the stockholders of the Company Company’s shareholders any supplement or amendment to such documents the Proxy Statement if any event shall occur which requires such action at any time prior to the Company Stockholder Shareholders Meeting, and (F) otherwise comply with all requirements of Law applicable to any Company Shareholders Meeting. The Buyers shall cooperate with the Company in connection with the preparation of the Proxy Statement and any amendments or supplements thereto, including promptly furnishing the Company, upon request, with any and all information as may be required to be set forth in the Proxy Statement under applicable law. The Company will provide Sterling a reasonable opportunity to review and comment upon the Proxy Statement, or any amendments or supplements thereto, and shall give reasonable consideration to any such comments proposed, prior to mailing the Proxy Statement to the Company’s shareholders. The Proxy Statement shall include the Company Board Recommendation.
(cii) Unless this Agreement is earlier terminated pursuant to Article XIf, subject at any time prior to the terms Company Shareholders Meeting, any information relating to the Company or any of Section 8.6(d) hereofthe Buyers or any of their respective Affiliates should be discovered by the Company or any of the Buyers which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties and, to the extent required by applicable law, the Company shall include disseminate an appropriate amendment thereof or supplement thereto describing such information to the Company’s shareholders.
(iii) The Company represents, warrants, covenants and agrees that (A) none of the information included or incorporated by reference in the Company Proxy Statement or any other document filed with the RecommendationSEC in connection with the Transactions (all such other documents, the “Other Filings”) shall, in the case of the Proxy Statement, at the date it is first mailed to the Company’s shareholders or at the time of the Company Shareholders Meeting or at the time of any amendment or supplement thereof, or, in the case of any Other Filing, at the date it is first mailed to the Company’s shareholders or at the date it is first filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no covenant is made by the Company with respect to statements made or incorporated by reference therein in reliance on, and conformity with, information supplied in writing by or on behalf of the Buyers or in connection with the preparation of the Proxy Statement or the Other Filings expressly for inclusion therein, and (B) the Proxy Statement and the Other Filings that are filed by the Company shall comply as to form in all material respects with the requirements of the 1934 Act.
(iv) Each of the Buyers severally and not jointly, represents, warrants, covenants and agrees that none of the information supplied in writing by or on behalf of such Buyer expressly for inclusion in the Proxy Statement or the Other Filings will, in the case of the Proxy Statement, at the date it is first mailed to the Company’s shareholders or at the time of the Company Shareholders Meeting or at the time of any amendment or supplement thereof, or, in the case of any Other Filing, at the date it is first mailed to the Company’s shareholders or at the date it is first filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
Appears in 1 contract
Samples: Securities Purchase Agreement (Select Comfort Corp)
Proxy Material. (a) If approval of the Company Stockholders Stockholder Approval is required by Delaware Law under the DGCL in order to consummate the Merger other than pursuant to Section 253 of the DGCL, then, in accordance with DGCL and the Company Governing Documents, as soon promptly as reasonably practicable following after the Acceptance Timeconsummation of the Offer, the Company and Parent shall prepare jointly prepare, and the Company shall file with the SECSEC a preliminary Proxy Statement and all other proxy materials for such meeting. Subject to Section 8.3(c), a proxy statement, letter to stockholders, notice the Company shall include in the Proxy Statement the unanimous recommendation of meeting and form of proxy accompanying the proxy statement that will be provided Company Board to the Company Stockholders in connection with the solicitation stockholders of proxies for use at the Company to grant Stockholder MeetingApproval and the written opinion of the Company’s financial advisor, and any schedules required to be filed with dated as of the SEC in connection therewith (collectively, as amended or supplemented, the “Company Proxy Statement”)date hereof. The Company and Parent, as the case may be, shall furnish all information concerning the Company or Parent it as the other party hereto may reasonably request in connection with the preparation and filing with the SEC of the Company Proxy Statement. Subject to all applicable requirements under applicable LawsAs promptly as reasonably practicable after any comments are received from the SEC thereon (or upon notice from the SEC that no such comments will be made), the Company shall use commercially reasonable efforts to cause shall, jointly with Parent, prepare and file any required amendments to, and the Company definitive, Proxy Statement to be disseminated to the Company Stockholders as promptly as practicable following the filing thereof with the SEC. Each party hereto The Company shall cause promptly provide Parent and its counsel with (i) any comments or other communications, whether written or oral, that the Company Proxy Statement to, when filed with the SEC, comply as or its counsel may receive from time to form in all material respects with the applicable requirements of the Exchange Act. At the time the Company Proxy Statement or any amendment or supplement thereto is first mailed to the Company Stockholders and at the time of the Company Stockholder Meeting, the parties hereto will cause the Company Proxy Statement not to contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that notwithstanding the foregoing, no representation or warranty is made or covenant is agreed to by any party hereto with respect to information supplied by any other party hereto or any of their officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Company Proxy Statement. No filing of, or amendment or supplement to, or correspondence with from the SEC or its staff with respect to the Company Proxy Statement shall be made by the Company without providing Parent promptly after receipt of those comments or other communications, and Merger Sub (ii) a reasonable opportunity to review and comment thereon. The Company shall advise Parent and Merger Sub, promptly after it receives notice thereof, participate in the response of any request by the SEC or its staff for an amendment or revisions to the Company Proxy Statementto those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), or comments thereon and responses thereto, or requests including by the SEC or its staff for additional information in connection therewith. If at any time prior to the Company Stockholders’ Meeting, any information relating to the Company, Parent or Merger Sub, or any of their respective directors, officers or Affiliates, should be discovered by participating with the Company or Parent which should its counsel in any discussions or meetings with the SEC. Whenever any event occurs that is required to be set forth in an amendment or supplement to the Company Proxy Statement so that the Company Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party or parties hereto, as the case may be, and an appropriate amendment or supplement to the Company Proxy Statement describing such information shall be promptly prepared and filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company. The Company shall cause the Company Proxy Statement to comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and the Nasdaq Global Select Market.
(b) In connection with the filing of the Company definitive Proxy Statement, the Company, Company shall promptly inform Parent of such occurrence and Merger Sub will cooperate to: (i) concurrently with the preparation and filing of the Company Proxy Statementshall, jointly with Parent, prepare and file with the SEC or its staff, and/or mail to stockholders of the Company, such amendment or supplement. The Company shall provide Parent and its counsel with a reasonable opportunity to review and comment on the preliminary Proxy Statement and any other documents required amendment or supplement thereto prior to filing such with the SEC, and the Company shall give reasonable and good faith consideration to any comments made by Parent and its counsel. The Company shall provide Parent with a copy of all such filings made with the SEC. The Company will promptly cause the definitive Proxy Statement to be mailed to its stockholders at the earliest practicable time after the definitive Proxy Statement is filed with the SEC relating SEC. Subject to the Merger and the other transactions contemplated hereby and furnish to each other all information concerning such party as may be reasonably requested by the other party in connection with the preparation of the any such required documents; (ii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will consult with each other prior to providing such response; (iii) as promptly as reasonably practicable after consulting with each other, prepare and file any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law; (iv) have cleared by the SEC such documents; and (v) to the extent required by applicable Law, as promptly as reasonably practicable prepare, file and distribute to the stockholders of the Company any supplement or amendment to such documents if any event shall occur which requires such action at any time prior to the Company Stockholder Meeting.
(c) Unless this Agreement is earlier terminated pursuant to Article X, subject to the terms of Section 8.6(d) hereof8.3(d), the Company shall include will use its commercially reasonable efforts to solicit from its stockholders proxies in favor of the Company Proxy Statement adoption and approval of this Agreement and the Recommendationapproval of the Merger.
Appears in 1 contract
Samples: Merger Agreement (Iomega Corp)
