Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and responding to any comments of the SEC thereon, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statement. (b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act and the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval. (c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 5 contracts
Samples: Purchase Agreement (Genco Shipping & Trading LTD), Purchase Agreement (Genco Shipping & Trading LTD), Purchase Agreement (Genco Shipping & Trading LTD)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or the other Prior Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicableProposal, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and responding to any comments of the SEC thereon, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statement.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act and the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 4 contracts
Samples: Purchase Agreement (Genco Shipping & Trading LTD), Purchase Agreement (Centerbridge Credit Partners, L.P.), Purchase Agreement (Apollo Management Holdings GP, LLC)
Proxy Statement; Stockholders Meeting. (a) Promptly The Company shall, with the assistance of Parent, prepare and will cause to be filed with the SEC as promptly as reasonably practicable following the execution and delivery date of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later but in any event no more than sixty (60) 40 days following the Closing Date date of this Agreement, unless otherwise agreed in writing by the parties hereto) a proxy statement (together with any amendments thereof or supplements thereto, the “Stockholders Meeting DeadlineProxy Statement”), for ) relating to the purpose of seeking approval meeting of the Company’s stockholders for the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held to consider the adoption of this Agreement and promptly following the completion of the Stockholders Meeting (and in no event more later than the tenth (10th) Business Day following the date of this Agreement, unless otherwise agreed by the parties hereto) initiate a “broker search” in accordance with Rule 14a-13 of the Exchange Act. Parent, Merger Sub and the Company shall cooperate with each other in the preparation of the Proxy Statement and any amendments or supplements thereto. The Company agrees and covenants that none of the information included in the Proxy Statement shall, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, or at the time of the Stockholders’ Meeting, contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that no such covenant shall apply to information provided by or on behalf of Parent and Merger Sub for inclusion in the Proxy Statement. The Proxy Statement shall comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations promulgated thereunder.
(b) As promptly as reasonably practicable following the date of this Agreement, each of Parent and Merger Sub shall furnish the Company with all information reasonably requested by the Company and required pursuant to the Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Proxy Statement. Parent agrees and covenants that none of the information with respect to Parent or its Subsidiaries supplied or to be supplied by Parent for inclusion in the Proxy Statement will, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) The Company shall as soon as reasonably practicable notify Parent upon the receipt 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 or the CPLG Registration Statement, and the Company shall provide Parent with copies of all written correspondence between the Company and its Representatives, on the one year hand, and the SEC and its staff, on the other hand, relating to the Proxy Statement, the CPLG Registration Statement or the transactions contemplated hereby or thereby. The Company shall use its reasonable best efforts to respond (with the assistance of, and after consultation with, Parent as provided by this Section 5.8(c)) as promptly as practicable to any comments of the Closing Date SEC with respect to the Proxy Statement or the CPLG Registration Statement and to have the Proxy Statement and the CPLG Registration Statement cleared by the staff of the SEC as promptly as reasonably practicable after filing. If, at any time prior to the Stockholders’ Meeting, any information relating to the Company, Parent or any of their respective Affiliates, officers or directors is discovered by the Company or Parent which, in the reasonable judgment of the Company or Parent, should be set forth in an amendment or supplement to the Proxy Statement or the CPLG Registration Statement, so that the Proxy Statement, the CPLG Registration Statement or the other filings shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties thereof, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent reasonably practicable. In connection with required by applicable Law, disseminated to the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) stockholders of the 1934 Act Company. Prior to filing or mailing the Proxy Statement (including a proxy statement and form of proxy) for use at any amendment or supplement thereto), or filing or mailing the Stockholders Meeting andCPLG Registration Statement, if applicable, each Subsequent Stockholders Meeting, and, after receiving and or responding to any comments of the SEC thereonor its staff with respect thereto, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company shall provide Parent with a reasonable opportunity to review and comment on such information relating to documents or responses and shall reasonably consider comments reasonably proposed by Parent in such Investor and its investment documents or responses. Nothing in this Section 5.8(c) shall limit the Company as the Company may reasonably request for inclusion in each proxy statementobligations of any party under Section 5.8(a), (b) or (d).
(bd) Subject As promptly as reasonably practicable after the SEC confirms that it has no further comments on the Proxy Statement is declared effective, the Company will mail the Proxy Statement to their fiduciary obligations under applicable law the holders of Shares as of the record date set for determining the stockholders entitled to vote on this Agreement. All documents (as determined in good faith by including the Company’s Board of Directors after consultation Proxy Statement) that the Company or CPLG is responsible for filing with the Company’s outside counselSEC in connection with the Merger and the other transactions contemplated hereby will comply as to form in all material respects with the applicable requirements of the Exchange Act.
(e) Unless the Company Board has made a Change of Board Recommendation in accordance with Section 5.8(f), the Company’s , acting through the Company Board of Directors (or a committee thereof), shall recommend to promptly following confirmation by the Company’s stockholders SEC that the SEC has no further comments on the Proxy Statement, take all reasonable action necessary to duly call, give notice of, convene and hold a meeting of its stockholders vote in favor for the purpose of the Proposal adopting this Agreement and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of approving the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors Charter Amendments (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act and the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at including any adjournment or postponement thereof, the “Stockholders’ Meeting”). The Stockholders’ Meeting shall be held within forty-five (45) days following the Proxy Statement having been cleared by the SEC, unless otherwise agreed in writing by the parties hereto; provided, that the Company may postpone, recess or adjourn such meeting (i) to the extent required by applicable law (including the exercise of fiduciary duties under applicable law), (ii) to allow reasonable additional time to solicit additional proxies to the extent the Company reasonably believes necessary in order to obtain the Requisite Stockholder Approval, (iii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business of the Stockholders’ Meeting or (iv) to allow reasonable additional time for the filing and dissemination of any supplemental or amended disclosure and then only for the minimum time which the Company Board has determined in any action good faith after consultation with its legal counsel is necessary under applicable law (including the exercise of fiduciary duties under applicable law) for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders’ Meeting.
(f) The Company, acting through the Company Board (or a committee thereof), shall, (i) include in the Proxy Statement the Company Board Recommendation and, subject to the consent of the stockholders Company’s financial advisor, the Fairness Opinion, (ii) use its reasonable best efforts to obtain the Requisite Stockholder Approval and (iii) not effect a Change of Board Recommendation; provided, that the Company Board may fail to include the Company Board Recommendation in the Proxy Statement or otherwise effect a Change of Board Recommendation in accordance with Section 5.4 if the Company Board shall have determined in good faith, after consultation with legal counsel to the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of that the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit failure of the Company Board to effect a Change of Board Recommendation would be reasonably likely to be bound by inconsistent with its fiduciary duties under applicable Law and the provisions of this Company shall have complied with its obligations under Section 7.9(c5.4(c) or Section 5.4(d), as applicable.
Appears in 3 contracts
Samples: Merger Agreement (Wyndham Hotels & Resorts, Inc.), Merger Agreement (Wyndham Worldwide Corp), Merger Agreement (La Quinta Holdings Inc.)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the 60th day after the Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders (the “Stockholder Approval”) for an increase in the issuance number of shares of authorized Common Stock upon conversion of (the Series A Preferred Stock issued pursuant “Share Increase”) from 200,000,000 to this Agreement or the other Purchase Agreements or in the Additional Private Placement no less than 500,000,000 shares (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at and take all commercially reasonable action (including, without limitation, the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with violate its fiduciary duty to the Company’s stockholders. Whether or not the Company’s 's Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act applicable law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From No later than two (2) Business Days after receipt of the Stockholder Approval, the Company shall file with the Secretary of State of Nevada an amendment to its Certificate of Incorporation to effect the Share Increase (the date hereof until termination of this Agreement pursuant on which the Share Increase is effective is hereinafter referred to Section 6.3 hereof (as the “TermShare Increase Date”).
(d) If (i) the Stockholders Meeting is not held and completed on or before the Stockholder Meeting Deadline or (ii) the Share Increase Date has not occurred on or before the earlier of two (2) Business Days after (A) receipt of the Stockholder Approval or (B) after the Stockholder Meeting Deadline (each, an “Event” and the date on which such Event first occurs, the “Event Date”), at the Stockholders Meeting andCompany will make pro rata payments to each Investor, if applicableas liquidated damages and not as a penalty, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent an amount equal to 1.5% of the stockholders aggregate amount invested by such Investor for each 30-day period or pro rata for any portion thereof following the Event Date until the related Event is cured. Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Company, Investors to seek injunctive relief. Such payments shall be made to each Investor and its Affiliates owning any shares in cash no later than three (3) Business Days after the end of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c)each 30-day period.
Appears in 3 contracts
Samples: Purchase Agreement (Visualant Inc), Purchase Agreement (Visualant Inc), Purchase Agreement (Visualant Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the The Company shall take all action necessary to call a meeting of its stockholders (hold the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), as soon as practicable after the date hereof for the purpose of seeking approval of acting upon this Agreement and the Company’s stockholders for transactions to be consummated at the Second Closing to the extent requiring stockholder approval, including, without limitation, the issuance of shares of Common Stock upon conversion and sale of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of Warrants to the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders Investors; provided, however, that at the Stockholders Meetingrequest of GSCP, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of adjourn the Stockholders Meeting from time to time until all of the conditions set forth in Article VI (other than the condition set forth in Section 6.1(c) and other than those conditions that by their nature are to be satisfied at the Second Closing) are satisfied or waived, such that the Stockholders Meeting shall take place on the same day as the Second Closing in no event more than one year after accordance with Section 2.5. The Company shall recommend that its stockholders approve this Agreement and the Closing Date transactions contemplated hereby requiring such stockholder approval. The Company and the Investors shall cooperate in the preparation of the Proxy Statement to be mailed to the extent reasonably practicable. In Company's stockholders in connection with the Stockholders Meeting andsolicitation of such approval and shall use their reasonable best efforts to take, if applicableor cause to be taken, each Subsequent Stockholders Meetingall actions necessary to prepare the Proxy Statement, file the Company will prepare and file Proxy Statement with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and responding respond to any comments of it may have, and distribute the SEC thereon, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statement.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend Proxy Statement to the Company’s 's stockholders as expeditiously as practicable; provided, that the stockholders vote Company shall file the Proxy Statement with the SEC no later than January 31, 2000 and the Company shall file a supplement to the Proxy Statement in favor connection with the execution of the Proposal and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting andFirst Amendment to this Agreement no later than May 15, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence2000. The Company covenants that shall give the Board of Directors of Investors a reasonable opportunity to review and comment on the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation Proxy Statement and related communications with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act and the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning the Investors shall have the right to consent to any shares descriptions of Common Stock shall or references to (Ai) appear at such meeting the Investors or otherwise cause all shares any of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum their Affiliates, and (Bii) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal Transaction Documents and such the other matters as may be necessary or advisable to consummate agreements executed concurrently therewith and the transactions contemplated by thereby in the Purchase Agreement; provided that no Investor Proxy Statement or such communications, which consent shall not be unreasonably withheld or delayed.
(t) Section 5.9(b) is hereby amended and restated in its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).entirety as follows:
Appears in 2 contracts
Samples: Securities Purchase Agreement (Goldman Sachs Group Inc), Securities Purchase Agreement (Promedco Management Co)
Proxy Statement; Stockholders Meeting. (a) Promptly following On or before the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days 120th day following the Closing Date (the “Stockholders Meeting Deadline”), for the purpose Company shall hold a meeting of seeking its stockholders (which meeting may be an annual or special meeting) (the “Stockholders Meeting”) at which the Company shall seek, and use its best efforts to obtain, approval of from the Company’s stockholders for for: (i) amendments to the issuance Company’s Certificate of Incorporation to increase the total number of shares of Common Stock upon conversion authorized for issuance by the Company to not less than 100,000,000 shares; (ii) the Exchange; and (iii) any stockholder approvals required by the listing standards of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement Nasdaq Global Market (together, the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board IncreaseProposals”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will prepare and promptly file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor Purchaser shall promptly furnish in writing to the Company such information relating to such Investor Purchaser and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement. The Company will comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or the Subsidiary or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the Exchange Act, the Company will promptly inform the Purchasers thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and Proposals (the Board Increase (each a “Company Board Recommendation”) at and take all commercially reasonable action to solicit the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, approval of the stockholders for the Proposals unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall shall, in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act Delaware General Corporation Law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect on or prior to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase Proposals and (ii) submit the Proposal and the Board Increase Proposals at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From The Company and the date hereof until termination Purchasers hereby declare that it is impossible to measure in money the damages which will accrue to the parties hereto by reason of the failure of any party to perform any of its obligations set forth in this Agreement pursuant Section 7.3. Therefore, the Purchasers shall have the right to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereofspecific performance of such obligations, and in if the Purchasers shall institute any action by consent of or proceeding to enforce the stockholders of the Companyprovisions hereof, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by hereby waives the provisions of this Section 7.9(c)claim or defense that the party instituting such action or proceeding has an adequate remedy at law.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P), Securities Purchase Agreement (Neurogen Corp)
Proxy Statement; Stockholders Meeting. (a) Promptly As promptly as possible, but in no event later than 15 business days following the execution and delivery of this Agreement Initial Closing, the Company shall take all action necessary to call a meeting of its stockholders (together with any adjournments or postponements thereof, the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval the Required Stockholder Approval for the issuance and sale to the Purchasers of the Proposal or the Board Increase as applicable, Shares to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date sold pursuant to the extent reasonably practicableSubsequent Closing and for all matters to be voted upon incident thereto (collectively, the “Proposal”). In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement (as amended or supplemented, the “Proxy Statement”) and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC Commission thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor Purchaser shall promptly furnish in writing to the Company such information relating to such Investor Purchaser and its investment in the Company as the Company may reasonably request for inclusion in each such proxy statement.
(b) Subject materials; provided that no Purchaser shall be obliged to their fiduciary obligations under applicable law furnish any such information if there has been no change in such Purchaser’s beneficial ownership (as determined in good faith by defined under the Company’s Board Exchange Act) of Directors after consultation with Common Stock since the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions of the immediately succeeding sentenceInitial Closing Date. The Company covenants that the Board of Directors will comply with Section 14(a) of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Exchange Act and the provisions rules promulgated thereunder in relation to any proxy statement and any form of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary proxy to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting be sent to the stockholders of the Company for their approval.
(c) From in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date hereof until termination the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of this Agreement pursuant to Section 6.3 hereof (the “Term”)Stockholders Meeting, contain any statement which, at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, time and in any action by consent the light of the stockholders of the Companycircumstances under which it is made, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting is false or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder misleading with respect to any vote regarding material fact, or which omits to state any material fact necessary in order to make the Board Increasestatements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the Stockholders Meeting or the subject matter thereof which has become false or misleading. During If the term of this Agreement, no such Investor or its Affiliates shall transfer Company should discover at any shares of Common Stock time prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of Subsequent Closing any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be bound by set forth in a supplement or amendment to the provisions of this Section 7.9(c)Proxy Statement, in addition to the Company’s obligations under the Exchange Act, the Company will promptly inform its stockholders and the Investors thereof.
Appears in 2 contracts
Samples: Purchase Agreement (Ameriserv Financial Inc /Pa/), Purchase Agreement (Ameriserv Financial Inc /Pa/)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the The Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which meeting shall occur not later than sixty (60) days following the Closing Date June 30, 2006 (the “Stockholders Meeting Deadline”) (and shall use its commercially reasonable efforts to call the Stockholders Meeting prior to May 15, 2006), for the purpose purpose, inter alia, of seeking the approval of the Company’s stockholders for to permit, in compliance with Rule 43520(i) of the issuance NASDAQ Marketplace Rules, the exercise price of shares the Warrants to be reduced to a price less than the closing bid price of the Common Stock upon conversion on the Trading Day immediately preceding the Closing Date pursuant to Section 9 of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement Warrants (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at connection therewith, a reasonable period of time prior to the Stockholders MeetingMeeting Deadline, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. The Company shall comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading; provided that the Company shall not be responsible for any information (i) provided by an Investor for inclusion in the Proxy Statement and relied upon by the Company in good faith, or (ii) required to be provided by any Investor for inclusion in the Proxy Statement pursuant to Section 4.10(b) but not so provided.
(b) Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statementthe Proxy Statement.
(bc) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at and shall take all commercially reasonable action (including, without limitation, the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with violate its fiduciary duty duties to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act Delaware General Corporation Law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase Proposal, and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(cd) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof Each Investor acknowledges, covenants and agrees that it (the “Term”), i) may not vote any Shares or Warrant Shares at the Stockholders Stockholder’s Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at or any adjournment or postponement thereof, and in any action by consent other meeting of the stockholders of the Company, each Investor and its Affiliates owning whether in person or by proxy, for, or take any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held stockholder action by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it written consent in favor respect of the Proposal and such other matters as may be necessary Shares or advisable Warrant Shares to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreementapprove, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless or any other proposal to approve the transferee has agreed for financing contemplated hereby, (ii) shall abstain from voting, and shall direct any proxy to abstain from voting, any of its Shares and Warrant Shares on, and shall refrain from acting by written consent in respect of any of its Shares and Warrant Shares to approve, the benefit of Proposal or any other proposal to approve the financing contemplated hereby. Each Investor hereby directs the Company not to be bound tally, count or validate any Shares or Warrant Shares voted, whether in person or by the provisions proxy, and to reject any written consent signed, in contravention of this Section 7.9(c4.10(d).
Appears in 1 contract
Samples: Securities Purchase Agreement (American Technology Corp /De/)
Proxy Statement; Stockholders Meeting. (ai) Promptly following the execution and delivery of this Agreement Closing, the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date May 31, 2015 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for for, among other things, the issuance of shares of Common Stock upon conversion and sale of the Series A Preferred Stock issued pursuant Securities to this Agreement or the other Purchase Agreements or in the Additional Private Placement Purchasers (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicableProposal, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor Purchaser shall promptly furnish in writing to the Company such information relating to such Investor Purchaser and its investment in the Company as the Company may reasonably request for inclusion in each Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, each a “Proxy Statement”) and any form of proxy to be sent or made available to the stockholders of the Company in connection with the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting, and each Proxy Statement shall not, on the date that such Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to stockholders or at the time of the Stockholders Meeting or any Subsequent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting or, if applicable, any Subsequent Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the applicable Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Investors thereof. The date on which the Proposal is approved by the Company’s stockholders is referred to herein as the “Approval Date.”
(bii) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act Delaware General Corporation Law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (iA) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (iiB) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From . The Company represents and warrants to the Purchasers that, as of the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (hereof, the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the Company has received executed voting agreements from stockholders holding a majority of the Company, each Investor ’s issued and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it outstanding stock to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c)Proposal.
Appears in 1 contract
Samples: Junior Secured Convertible Note Purchase Agreement (Selectica Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly following As promptly as practicable after the execution and delivery of this Agreement the Company Audited Financial Statements, Purchaser shall take all action necessary prepare, with the reasonable assistance of the Company, and will file with the SEC, a proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from the Purchaser stockholders in conjunction with the Stockholder Approval. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from Purchaser stockholders to call a vote, at an extraordinary general meeting of its Purchaser stockholders to be called and held for such purpose (the “Stockholders Meeting”), which in favor of resolutions approving (i) the adoption and approval of this Agreement and the transactions contemplated hereby or referred to herein, (ii) the appointment of the members of the Post-Closing Board in accordance with Section 5.13 hereof, (iii) such other matters as Purchaser and Seller shall occur not later than sixty (60) days following hereafter mutually determine to be necessary or appropriate in order to effect the Closing Date transactions contemplated by this Agreement (the approvals described in foregoing clauses (i) through (iii), collectively, the “Stockholders Meeting DeadlineStockholder Approval Matters”), for and (iv) the purpose adjournment of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, if necessary or desirable in the Company shall take all action necessary reasonable determination of Purchaser. If on the date for which the Stockholders Meeting is scheduled, Purchaser has not received proxies representing a sufficient number of shares to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for obtain the purpose of seeking approval of the Proposal Stockholder Approval Matters, whether or the Board Increase as applicablenot a quorum is present, to be held promptly following the completion Purchaser may make one or more successive postponements or adjournments of the Stockholders Meeting Stockholder Meeting. Purchaser shall cooperate and in no event more than one year after provide Seller (and its counsel) with a reasonable opportunity to review and comment on the Closing Date to Proxy Statement and any amendment or supplement thereto before Purchaser files the extent reasonably practicable. In connection same with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will prepare and file SEC. Seller shall provide Purchaser with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and responding to any comments of the SEC thereon, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor concerning Seller and its investment in the Company as the Company stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may reasonably request be required or appropriate for inclusion in each proxy statementthe Proxy Statement, or in any amendments or supplements thereto, which information provided by Seller shall be true and correct and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
(b) Subject Purchaser shall take any and all reasonable and necessary actions required to their fiduciary obligations under satisfy the requirements of the Securities Act, the Exchange Act and other applicable law (as determined Laws in good faith by the Company’s Board of Directors after consultation connection with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal Proxy Statement and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board . Each of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentenceSeller, the Company and Purchaser shall, and shall cause each of its Subsidiaries to, make their respective directors, officers and employees, upon reasonable advance notice, available to Seller, the Company and Purchaser and their respective Representatives in accordance connection with the Xxxxxxxx Islands Business Corporations Act and drafting of the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline public filings with respect to the Stockholders Meeting transactions contemplated by this Agreement, including the Proxy Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as soon otherwise required by applicable Laws. Purchaser shall amend or supplement the Proxy Statement and cause the Proxy Statement, as practicable with respect to each Subsequent Stockholders Meetingso amended or supplemented, to consider be filed with the SEC and vote upon the approval of the Proposal to be disseminated to Purchaser stockholders, in each case as and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders extent required by applicable Laws and subject to the terms and conditions of the Company for their approvalthis Agreement.
(c) From Purchaser, with the date hereof until termination assistance of this Agreement pursuant the other Parties, shall promptly respond to Section 6.3 hereof (any SEC comments on the Proxy Statement and shall otherwise use its commercially reasonable efforts to cause the Proxy Statement to “Term”)clear” comments from the SEC and become effective. Purchaser shall provide Seller with copies of any written comments, at and shall inform Seller of any material oral comments, that Purchaser or its Representatives receive from the SEC or its staff with respect to the Proxy Statement and the Stockholders Meeting promptly after the receipt of such comments and shall give Seller a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments.
(d) As soon as practicable following the Proxy Statement “clearing” comments from the SEC, Purchaser shall distribute the Proxy Statement to its stockholders, and, if applicablepursuant thereto, each Subsequent shall call the Stockholders Meeting in accordance with DGCL for a date no later than forty five (45) days following the filing of the definitive Proxy Statement.
(e) Purchaser shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, its Organizational Documents and this Agreement in the preparation, filing and distribution of the Proxy Statement, any solicitation of proxies thereunder, the calling and holding of the Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Share Exchange Agreement (Lm Funding America, Inc.)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company The Seller shall take all action necessary use commercially reasonable efforts to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will prepare and file with the SEC proxy materials pursuant to U.S. Securities and in compliance with Section 14(aExchange Commission (the "SEC") of the 1934 Act (including as promptly as practicable, a proxy statement and form relating to the solicitation of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and responding to any comments votes of the SEC thereon, Seller's stockholders authorizing the sale of assets contemplated by this Agreement (the "Proxy Statement"). The Seller shall mail such proxy materials (or, if permitted, notice of cause the availability of such proxy materials) Proxy Statement to be mailed to the Seller's stockholders of the Companyas soon as practicable. Each Investor The Buyer shall promptly furnish in writing to provide the Company Seller with such information relating to such Investor and its investment in the Company as the Company it may reasonably request for inclusion in the Proxy Statement. The information provided and to be provided by the Seller and the Buyer, respectively, for use in the Proxy Statement shall be, as of the date of the stockholders' meeting contemplated therein, true and correct in all material respects and shall not omit to state any material fact required to be stated therein or necessary in order to make such information not misleading, and the Seller and the Buyer each proxy statementagree to correct any information provided by it for use in the Proxy Statement to the extent such information shall have become materially false or misleading.
(b) The Seller will promptly notify the Buyer of (i) the receipt of any comments from the SEC and (ii) any request by the SEC for any amendments to the Proxy Statement or for additional information relating to the Proxy Statement. The Proxy Statement and any amendment thereto, and all mailings to the Seller's stockholders, in each case in connection with this Agreement and the transactions contemplated hereby shall be provided to the Buyer and its representatives prior to the filing or mailing thereof, as the case may be, in substantially the same form as proposed to be filed or mailed, as the case may be.
(c) The Seller shall, as promptly as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders for the purpose of authorizing the sale of assets contemplated by this Agreement. Subject to their Section 6.07 and its fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel)duties, the Company’s Seller's Board of Directors shall recommend to the Company’s its stockholders that the stockholders vote in favor authorization of the Proposal and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act and the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approvalmatters.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Asset Purchase Agreement (Igi Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date April 15, 2014 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion and sale to the Investors of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement Securities (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicableProposal, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, each a “Proxy Statement”) and any form of proxy to be sent or made available to the stockholders of the Company in connection with the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting, and each Proxy Statement shall not, on the date that such Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to stockholders or at the time of the Stockholders Meeting or any Subsequent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting or, if applicable, any Subsequent Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the applicable Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s 's Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act Delaware General Corporation Law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Purchase Agreement (Selectica Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly following In accordance with the execution DGCL, the certificate of incorporation and delivery the by-laws of this Agreement the Company, the Exchange Act, and any applicable rules and regulations of NASDAQ, the Company, in consultation with Parent, shall call, give notice of, convene and hold a special meeting of stockholders of the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days as promptly as reasonably practicable following the Closing Date date upon which the Proxy Statement is cleared by the SEC (with the “Stockholders Meeting Deadline”)record date and meeting date to be set by the board of directors of the Company after consultation with Parent regarding such dates) and shall as promptly as reasonably practicable following the date of this Agreement, for the purpose of seeking obtaining the Requisite Company Vote, duly set a record date (such date to be at least 20 Business Days following the initiation of a broker search pursuant to Section 14a-13 of the Exchange Act). Subject to the terms of this Agreement, the board of directors of the Company shall recommend that the stockholders of the Company vote in favor of the adoption of this Agreement. The Company shall comply with the DGCL, the certificate of incorporation and by-laws of the Company, the Exchange Act, and the rules and regulations of NASDAQ in connection with the Stockholders Meeting, including preparing and delivering the Proxy Statement to the Company’s stockholders, as required pursuant to the Exchange Act and Section 6.4(b) below. Subject to the terms of this Agreement, the Company shall use its commercially reasonable efforts to solicit (or cause to be solicited) from its stockholders proxies constituting the Requisite Company Vote. The Company shall not change the date of, postpone or adjourn the Stockholders Meeting without the consent of Parent; provided, that, without Parent’s consent, the Company may adjourn or postpone the Stockholders Meeting no more than two times (i) to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders Meeting, (ii) to allow reasonable additional time to solicit from its stockholders proxies in favor of approval of the Merger and the adoption of this Agreement, (iii) if as of the time for which the Company Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Stockholders Meeting or to the extent that at such time the Company has not received proxies sufficient to allow the receipt of the Requisite Company Vote at the Stockholders Meeting or (iv) as required by applicable Law; provided, further, that the Stockholders Meeting shall not be postponed, recessed or adjourned pursuant to this proviso to a date that is more than 30 days after the date on which the Stockholders Meeting was originally scheduled without the prior written consent of Parent. Parent may cause the Company to postpone or adjourn the Stockholders Meeting by prior written notice to the Company once for a period of no longer than ten Business Days if Parent believes in good faith that additional time is required to solicit stockholder proxies in favor of approval of the Merger and the adoption of this Agreement.
(b) Promptly following the date of this Agreement or such later date to which Parent consents (such consent not to be unreasonably withheld, conditioned or delayed), the Company, with the assistance of Parent and HoldCo, shall prepare, and the Company shall file with the SEC, the preliminary Proxy Statement and any amendments or supplements thereto in form and substance reasonably satisfactory to each of the Company and Parent relating to the Merger and the transactions contemplated hereby. Subject to the terms of this Agreement, the Proxy Statement shall reflect the Company Recommendation and shall include a description of the other Board Actions. The Company shall also include in the Proxy Statement, and shall obtain all necessary consents of the Company’s stockholders for financial advisor to permit the issuance of shares of Common Stock upon conversion Company to include in the Proxy Statement, in its entirety, the fairness opinion described in Section 4.22, together with a summary thereof. Parent and HoldCo each shall cooperate with the Company in the preparation of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) preliminary Proxy Statement and the increase definitive Proxy Statement and shall furnish to the Company the information relating to it and Merger Sub required by the Exchange Act. The Company shall use its commercially reasonable efforts, after consultation with Parent, to respond as promptly as practicable to any comments of the size of SEC and to cause the Company’s Board of Directors from eight (8) members Proxy Statement in definitive form to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by be mailed to the Company’s stockholders at the Stockholders Meetingearliest practicable time. Each of the Company, Parent, Merger Sub and HoldCo shall promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it shall have become false or misleading in any material respect. The Company agrees to take all steps necessary to cause the Proxy Statement as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as, and to the extent, required by applicable Law. The Company shall promptly provide Parent and its counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from the SEC or its staff (including any request by the SEC or its staff for any amendments or supplements to the preliminary Proxy Statement or the definitive Proxy Statement), and the Company and Parent and HoldCo shall cooperate in filing with the SEC or its staff, and if required, the Company shall take all action necessary mail to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase stockholders, as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent as reasonably practicable, such amendment or supplement. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will prepare Parent and file with the SEC proxy materials pursuant its counsel shall be given a reasonable opportunity to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and responding to review any comments of the SEC thereon, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating written responses to such Investor SEC comments and its investment in the Company as the Company may reasonably request for inclusion in each proxy statement.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty give due consideration to the Company’s stockholders. Whether reasonable additions, deletions or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act and the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action changes suggested thereto by consent of the stockholders of the Company, each Investor Parent and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c)counsel.
Appears in 1 contract
Samples: Merger Agreement (Panera Bread Co)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement Agreement, the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date April 15, 2019 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for (i) the authorization of 1,000,000 shares of “blank check” preferred stock and (ii) the issuance and sale to the Investors of shares the Securities (including all of Common Stock the Conversion Shares issuable upon the full conversion of the Series A Preferred Stock issued pursuant to this Agreement or Shares and all of the other Purchase Agreements or in Warrant Shares issuable upon the Additional Private Placement full exercise of the Warrants) (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board IncreaseProposals”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the "Proxy Statement") and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders that the stockholders vote in favor of the Proposal and Proposals (the Board Increase (each a “Company Board Recommendation”) at and take all commercially reasonable action (including, without limitation, the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposals unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with violate its fiduciary duty to the Company’s stockholders. Whether or not the Company’s 's Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act applicable law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase Proposals and (ii) submit the Proposal and the Board Increase Proposals at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From Each Investor agrees to vote all shares of capital stock of the date hereof until termination Company that it beneficially owns in favor of this Agreement pursuant to Section 6.3 hereof (the “Term”), approval of the Proposals at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Purchase Agreement (PLx Pharma Inc.)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement Agreement, the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for (i) an increase in the issuance total number of authorized shares of Common Stock upon conversion to 100,000,000 shares and (ii) the issuance and sale to the Investors of the Series A Preferred Stock issued pursuant Securities, including any change of control which may be deemed to this Agreement or the other Purchase Agreements or occur in the Additional Private Placement connection therewith (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board IncreaseProposals”). In the event that the Proposal or the Board Increase is Proposals are not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) one additional meetings meeting of its stockholders (each a the “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicableProposals, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date Date, to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each the Subsequent Stockholders Meeting, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each the Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. The Company will comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, each a “Proxy Statement”) and any form of proxy to be sent or made available to the stockholders of the Company in connection with the Stockholders Meeting or, if applicable, the Subsequent Stockholders Meeting, and each Proxy Statement shall not, on the date that such Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to stockholders or at the time of the Stockholders Meeting or the Subsequent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Stockholders Meeting or the Subsequent Stockholders Meeting which has become false or misleading. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statementProxy Statement.
(b) Subject to their its fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and Proposals (the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each the Subsequent Stockholders Meeting, and take all commercially reasonable action to solicit the approval of the stockholders for the Proposals unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentencethis Section 6.3(b). The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with its fiduciary duty duties to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act DGCL and the provisions of its Second Amended and Restated Articles Certificate of Incorporation, as amended, or its Amended Incorporation and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase Proposals and (ii) submit the Proposal and the Board Increase Proposals at the Stockholders Meeting or, if applicable, each the Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date May 2, 2006 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and responding to any comments of the SEC thereon, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statement.the
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel)following sentence, the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at and take all commercially reasonable action (including, without limitation, the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless (i) the Company shall have received a Superior Proposal and (ii) the Board of Directors (after consultation with the Company’s outside counsel) shall determine have determined in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with violate its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act Delaware General Corporation Law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the 60th day after the Closing Date (the 75th day after the Closing Date in the event that the SEC comments on the Company’s preliminary proxy materials) (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance and sale to the Investors of shares the Securities without any restrictions or limitations upon conversion or issuance of Common Stock upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicableProposal, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, each a “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting, and each Proxy Statement shall not, on the date that such Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting or any Subsequent Stockholders Meeting, as applicable, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting or, if applicable, any Subsequent Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the applicable Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the non-interested members of the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and take all commercially reasonable action to solicit the approval of the stockholders for the Proposal unless the non-interested members of the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the non-interested members of the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with violate its fiduciary duty to the Company’s stockholders. Whether or not the non-interested members of the Company’s 's Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act Delaware General Corporation Law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each and any applicable Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement Agreement, the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which ) and shall occur use its commercially reasonable efforts to cause such Stockholders Meeting to be held not later than sixty (60) days following the Closing Date September 30, 2005 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for (i) the issuance of shares of Common Stock upon conversion and sale to the Investors of the Series A Preferred Stock issued pursuant to this Agreement or Remaining Securities and (ii) the other Purchase Agreements or full adjustment of the Warrants in accordance with the Additional Private Placement provisions of Section 8(f)(8) thereof (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement, which information shall not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders (and, subject to their fiduciary obligations, not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal and shall cause the Board Increase Company to take all commercially reasonable action (each including, without limitation, the hiring of a “Company Board Recommendation”proxy solicitation firm of nationally recognized standing) at to solicit the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions approval of the immediately succeeding sentence. The Company covenants that stockholders for the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholdersProposal. Whether or not the Company’s Board of Directors modifiesdetermines at any time after the date hereof that, amends due to its fiduciary duties, it must revoke or withdraws either Company Board Recommendation pursuant amend its recommendation to the immediately preceding sentenceCompany’s stockholders, the Company shall be required to, and will take, in accordance with the Xxxxxxxx Islands Business Corporations Act applicable law and the provisions its Certificate of its Second Amended Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all commercially reasonable action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approvalProposal.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Purchase Agreement (Tegal Corp /De/)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the The Company shall take all action necessary to call hold a meeting of its stockholders (as soon as practicable after the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), date hereof for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock acting upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or and the transactions contemplated hereby and by the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date Transaction Documents to the extent reasonably practicable. In requiring stockholder approval, including, without limitation, the issuance and sale of Preferred Stock and Warrants to the Purchaser in connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders MeetingSecond Purchase, the Company will prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) amendment of the 1934 Act (including a proxy statement and form certificate of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and responding to any comments incorporation of the SEC thereon, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statement.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel)set forth on Exhibit 4.5, the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless election to the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to of a number of persons designated by the provisions Purchaser who will constitute a majority of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless immediately following the Second Closing (the "Purchaser Designees"). Unless the Board of Directors (shall have determined in good faith, after consultation with and based upon the Company’s outside counsel) shall determine in the good faith exercise advice of its business judgment financial and outside legal advisors, that maintaining such Company Board Recommendation doing so would be inconsistent with its constitute a breach of their fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentenceunder applicable Law, the Company shall recommend that its stockholders approve this Agreement and such transactions. The Board of Directors shall give the Purchaser prompt written notice of any determination by the Board of Directors not to recommend this Agreement and such transactions, or any determination to withdraw, modify or change any such recommendation. The Company and the Purchaser shall cooperate in accordance the preparation of the Proxy Statement to be mailed to the Company's stockholders in connection with the Xxxxxxxx Islands Business Corporations Act and the provisions solicitation of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the their approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (and the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereoftransactions described above, and in shall use their reasonable best efforts to take, or cause to be taken, all actions necessary to prepare the Proxy Statement, file the Proxy Statement with the SEC and respond to any action by consent comments it may have, and distribute the Proxy Statement to the Company's stockholders as expeditiously as practicable. At least ten days prior to the filing of the Proxy Statement with the SEC, Purchaser shall notify the Company of the identity of the Purchaser Designees designated by the Purchaser to serve on the Board of Directors at and following the Initial Closing. The Company shall give the Purchaser a reasonable opportunity to review and comment on the Proxy Statement and related communications with stockholders of the Company, each Investor and its Affiliates owning the Purchaser shall have the right to consent to any shares descriptions of Common Stock shall or references to (Ai) appear at such meeting the Purchaser or otherwise cause all shares the Purchaser Designees or any Affiliate of Common Stock held by it to be counted as present thereat for purposes any of establishing a quorum the foregoing, and (Bii) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal Transaction Documents and such the other matters as may be necessary or advisable to consummate agreements executed concurrently therewith and the transactions contemplated by thereby in the Purchase Agreement; provided that no Investor Proxy Statement or its Affiliates such communications, which consent shall not be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor unreasonably withheld or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c)delayed.
Appears in 1 contract
Samples: Securities Purchase Agreement (Penske Capital Partners LLC)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date September 15, 2013 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion and sale to the Investors of the Series A Preferred Stock issued pursuant Securities and the issuance and sale to this Agreement or the other Purchase Agreements or in Other Investors of the Additional Private Placement Other Securities (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicableProposal, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, each a “Proxy Statement”) and any form of proxy to be sent or made available to the stockholders of the Company in connection with the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting, and each Proxy Statement shall not, on the date that such Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to stockholders or at the time of the Stockholders Meeting or any Subsequent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting or, if applicable, any Subsequent Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the applicable Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s 's Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act Delaware General Corporation Law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Purchase Agreement (Selectica Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement Agreement, the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance and sale to the Investors of the Securities, together with the Conversion Shares and Warrant Shares related thereto (including, without limitation, the approval to issue shares of Common Stock upon conversion of the Series A Preferred Stock issued pursuant in excess of 20% of the shares of Common Stock outstanding immediately prior to this Agreement or the other Purchase Agreements or in Closing at a price which is less than the Additional Private Placement per share closing sale price of the Common Stock on the trading day immediately preceding the date of the Closing and for a potential change of control transaction, under NASD Rule IM 4350(i)) (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date of the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to shareholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Closing, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders (and not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal and shall cause the Board Increase Company to take all commercially reasonable action (each including, without limitation, the hiring of a “Company Board Recommendation”proxy solicitation firm of nationally recognized standing) at to solicit the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions approval of the immediately succeeding sentence. The Company covenants that stockholders for the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholdersProposal. Whether or not the Company’s Board of Directors modifiesdetermines at any time after the date hereof that, amends due to its fiduciary duties, it must revoke or withdraws either Company Board Recommendation pursuant amend its recommendation to the immediately preceding sentenceCompany’s stockholders, the Company shall is required to, and will take, in accordance with the Xxxxxxxx Islands Business Corporations Act applicable law and the provisions its Certificate of its Second Amended Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approvalProposal.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Purchase Agreement (Artisoft Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement Agreement, the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date May 31, 2020 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance and sale to the Investors of shares the Securities (including all of Common Stock the Conversion Shares issuable upon the full conversion of the Series A Preferred Stock issued pursuant to this Agreement or Shares and all of the other Purchase Agreements or in Warrant Shares issuable upon the Additional Private Placement full exercise of the Warrants) (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at and take all commercially reasonable action (including, without limitation, the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with violate its fiduciary duty to the Company’s stockholders. Whether or not the Company’s 's Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act applicable law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From Each Investor agrees to vote all shares of capital stock of the date hereof until termination Company that it beneficially owns in favor of this Agreement pursuant to Section 6.3 hereof (the “Term”), approval of the Proposal at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Purchase Agreement (PLx Pharma Inc.)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date May 31, 2015 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for (i) the issuance and sale to the Investors of the Securities and the issuance and sale to the Other Investors of the Other Securities and (ii) an amendment to the Company’s Certificate of Incorporation in order to increase the authorized number of shares of Common Stock upon conversion thereunder to 35,000,000 for the purpose of reserving a sufficient number of shares of Common Stock for (x) the Series A Preferred issuance of (A) the Conversion Shares, (B) the Warrant shares, and (C) shares of Common Stock that may be issued pursuant to this Agreement or reserved for issuance in connection with future acquisitions or fundraising transactions by the other Purchase Agreements or Company, and (y) increases in the Additional Private Placement number of shares reserved for issuance under the Company’s equity incentive plans ((i) and (ii) collectively, the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicableProposal, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, each a “Proxy Statement”) and any form of proxy to be sent or made available to the stockholders of the Company in connection with the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting, and each Proxy Statement shall not, on the date that such Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to stockholders or at the time of the Stockholders Meeting or any Subsequent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting or, if applicable, any Subsequent Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the applicable Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Investors thereof. The date on which the Proposal is approved by the Company’s stockholders is referred to herein as the “Approval Date.”
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act Delaware General Corporation Law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Purchase Agreement (Selectica Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Agreement. The Company shall take all action necessary to call a meeting of its stockholders (the “"Stockholders Meeting”), which shall occur not later than sixty (60") days following the Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s 's stockholders for the issuance of shares of Common Stock upon conversion and sale to the Investors of the Series A Preferred Stock issued pursuant to this Agreement or Remaining Securities, together with the other Purchase Agreements or in the Additional Private Placement Conversion Shares and Warrant Shares related thereto (the “"Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”"). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the "Proxy Statement") and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date of the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to shareholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Second Closing, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s 's Board of Directors after consultation with the Company’s 's outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders (and not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal and shall cause the Board Increase Company to take all commercially reasonable action (each including, without limitation, the hiring of a “Company Board Recommendation”proxy solicitation firm of nationally recognized standing) at to solicit the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions approval of the immediately succeeding sentence. The Company covenants that stockholders for the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholdersProposal. Whether or not the Company’s 's Board of Directors modifiesdetermines at any time after the date hereof that, amends due to its fiduciary duties, it must revoke or withdraws either Company Board Recommendation pursuant amend its recommendation to the immediately preceding sentenceCompany's stockholders, the Company shall is required to, and will take, in accordance with the Xxxxxxxx Islands Business Corporations Act applicable law and the provisions its Certificate of its Second Amended Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approvalProposal.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Purchase Agreement (Artisoft Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the The Company shall take all action necessary to call hold a meeting of its stockholders (as soon as practicable after the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), date hereof for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock acting upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or and the transactions contemplated hereby and by the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date Transaction Documents to the extent reasonably practicable. In requiring stockholder approval, including, without limitation, the issuance and sale of Preferred Stock and Warrants to the Purchaser in connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders MeetingSecond Purchase, the Company will prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) amendment of the 1934 Act (including a proxy statement and form certificate of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and responding to any comments incorporation of the SEC thereon, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statement.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel)set forth on Exhibit 4.5, the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless election to the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to of a number of persons designated by the provisions Purchaser who will constitute a majority of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless immediately following the Second Closing (the "Purchaser Designees"). Unless the Board of Directors (shall have determined in good faith, after consultation with and based upon the Company’s outside counsel) shall determine in the good faith exercise advice of its business judgment financial and outside legal advisors, that maintaining such Company Board Recommendation doing so would be inconsistent with its constitute a breach of their fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentenceunder applicable Law, the Company shall recommend that its stockholders approve this Agreement and such transactions. The Board of Directors shall give the Purchaser prompt written notice of any determination by the Board of Directors not to recommend this Agreement and such transactions, or any determination to withdraw, modify or change any such recommendation. The Company and the Purchaser shall cooperate in accordance the preparation of the Proxy Statement to be mailed to the Company's stockholders in connection with the Xxxxxxxx Islands Business Corporations Act and the provisions solicitation of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the their approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (and the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereoftransactions described above, and in shall use their reasonable best efforts to take, or cause to be taken, all actions necessary to prepare the Proxy Statement, file the Proxy Statement with the SEC and respond to any action by consent comments it may have, and distribute the Proxy Statement to the Company's stockholders as expeditiously as practicable. At least ten days prior to the filing of the Proxy Statement with the SEC, Purchaser shall notify the Company of the identity of the Purchaser Designees designated by the Purchaser to serve on the Board of Directors at and following the Initial Closing. The Company shall give the Purchaser a reasonable opportunity to review and comment on the Proxy Statement and related communications with stockholders of the Company, each Investor and its Affiliates owning the Purchaser shall have the right to consent to any shares descriptions of Common Stock shall or references to (A) appear at such meeting i)the Purchaser or otherwise cause all shares the Purchaser Designees or any Affiliate of Common Stock held by it to be counted as present thereat for purposes any of establishing a quorum the foregoing, and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of ii)the Transaction Documents and the Proposal other agreements executed concurrently therewith and such other matters as may be necessary or advisable to consummate the transactions contemplated by thereby in the Purchase Agreement; provided that no Investor Proxy Statement or its Affiliates such communications, which consent shall not be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor unreasonably withheld or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c)delayed.
Appears in 1 contract
Samples: Securities Purchase Agreement (United Auto Group Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date December 28, 2009 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion and sale to the Investors of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement Shares (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice to holders of the availability of such proxy materials) to the stockholders record of the Company’s voting equity securities as of the record date for the Stockholders Meeting. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement. The Company will comply in all material respects with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at and take all commercially reasonable action (including, without limitation, soliciting shareholders to vote for the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, Proposal to the extent permitted pursuant to applicable law) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with violate its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act and the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement Signing Date, the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty than, (60x) days following if the Closing Proxy Statement shall not have been reviewed by the Staff of the SEC (e.g., it shall have received a no-review or non-response within the applicable ten-day period), the sixtieth (60th) day, otherwise, (y) the seventy-fifth (75th) day, after the Signing Date (the “Stockholders Meeting Deadline”), ) for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion and sale to the Investors of the Series A Preferred Securities on the terms and conditions set forth in each of the Transaction Documents so that the restrictions on voting, exercise and conversion need not remain in effect under the rules of the NASDAQ Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement Market (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) and, after providing the Lead Investor and Placement Agent Counsel with an opportunity to review and comment on such proxy materials provided that if the Company receives no response within two (2) Business Days of furnishing such proxy materials, it shall be free to file the proxy materials, file with the SEC, within fifteen (15) days after the Signing Date, such proxy materials for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Prior to responding to any comments of the SEC on such proxy materials, the Company shall furnish to the Lead Investor and Placement Agent Counsel a copy of any correspondence from the SEC relating the proxy materials and the proposed response to the SEC’s comments and provide the Lead Investor and Placement Agent Counsel with the opportunity to review and comment on such proposed response to the SEC, provided that if the Company receives no response within two (2) Business Days of furnishing such materials, it shall be free to file its proposed response. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the 1934 Act, the Company will promptly inform the Placement Agent and the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board provisions of Directors after consultation with the Company’s outside counsel)Section 6.13, the Company’s Board of Directors shall recommend to the Company’s stockholders (and, subject to the provisions of Section 6.13, not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal and shall cause the Board Increase Company to take all commercially reasonable action (each including, without limitation, the hiring of a “Company Board Recommendation”proxy solicitation firm) at to solicit the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions approval of the immediately succeeding sentence. The Company covenants that stockholders for the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholdersProposal. Whether or not the Company’s Board of Directors modifiesdetermines at any time after the date hereof that, amends due to its fiduciary duties, it must revoke or withdraws either Company Board Recommendation pursuant amend its recommendation to the immediately preceding sentenceCompany’s stockholders, the Company shall be required to, and will take, in accordance with the Xxxxxxxx Islands Business Corporations Act applicable law and the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended Incorporation and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approvalProposal.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the The Company shall take all action necessary to call a meeting of its stockholders (hold the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), as soon as practicable after the date hereof for the purpose of seeking approval acting upon this Agreement and the transactions to be consummated at the Second Closing to the extent requiring stockholder approval, including, without limitation, the issuance and sale of the Company’s stockholders for the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders MeetingInvestors; provided, however, that the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of adjourn the Stockholders Meeting from time to time until all of the conditions set forth in Article VI (other than the condition set forth in Section 6.1(c) and other than those conditions that by their nature are to be satisfied at the Second Closing) are satisfied or waived, such that the Stockholders Meeting shall take place on the same day as the Second Closing in no event more than one year after accordance with Section 2.5. The Company shall recommend that its stockholders approve this Agreement and the Closing Date transactions contemplated hereby requiring such stockholder approval. The Company and the Investors shall cooperate in the preparation of the Proxy Statement to be mailed to the extent reasonably practicable. In Company's stockholders in connection with the Stockholders Meeting andsolicitation of such approval and shall use their reasonable best efforts to take, if applicableor cause to be taken, each Subsequent Stockholders Meetingall actions necessary to prepare the Proxy Statement, file the Company will prepare and file Proxy Statement with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and responding respond to any comments of it may have, and distribute the SEC thereon, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statement.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend Proxy Statement to the Company’s 's stockholders as expeditiously as practicable; provided, that the stockholders vote in favor of Company shall file the Proposal and Proxy Statement with the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting andSEC no later than January 31, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence2000. The Company covenants that shall give the Board of Directors of Investors a reasonable opportunity to review and comment on the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation Proxy Statement and related communications with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act and the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning the Investors shall have the right to consent to any shares descriptions of Common Stock shall or references to (Ai) appear at such meeting the Investors or otherwise cause all shares any of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum their Affiliates, and (Bii) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal Transaction Documents and such the other matters as may be necessary or advisable to consummate agreements executed concurrently therewith and the transactions contemplated by thereby in the Purchase Agreement; provided that no Investor Proxy Statement or its Affiliates such communications, which consent shall not be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor unreasonably withheld or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c)delayed.
Appears in 1 contract
Samples: Securities Purchase Agreement (Goldman Sachs Group Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for (i) the issuance and sale to the Investors of the Securities and the issuance and sale to the Other Investors of the Other Securities and (ii) an amendment to the Company’s Certificate of Incorporation in order to increase the authorized number of shares of Common Stock thereunder to 35,000,000 for the purpose of reserving a sufficient number of shares of Common Stock for (x) the issuance of (A) shares of Common Stock issuable upon conversion of the Series A F Preferred Stock, (B) the Warrant Shares, and (C) shares of Common Stock that may be issued pursuant to this Agreement or reserved for issuance in connection with future acquisitions or fundraising transactions by the other Purchase Agreements or Company, and (y) increases in the Additional Private Placement number of shares reserved for issuance under the Company’s equity incentive plans ((i) and (ii) collectively, the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statement.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions of the immediately succeeding sentenceProxy Statement. The Company covenants that the Board of Directors will comply with Section 14(a) of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations 1934 Act and the provisions rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of its Second Amended and Restated Articles of Incorporation, as amended, proxy to be sent or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting made available to the stockholders of the Company for their approval.
(c) From in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date hereof until termination that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to stockholders or at the time of this Agreement pursuant the Stockholders Meeting, contain any untrue statement of a material fact or omit to Section 6.3 hereof (state any material fact necessary in order to make the “Term”)statements made therein not false or misleading, at or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and which has become false or misleading. If the Company should discover at any adjournment time prior to the Stockholders Meeting any event relating to the Company or postponement thereofany of its Subsidiaries or any of their respective Affiliates, and officers or directors that is required to be set forth in any action by consent of a supplement or amendment to the stockholders of Proxy Statement, in addition to the Company's obligations under the 1934 Act, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by will promptly inform the provisions of this Section 7.9(c)Investors thereof.
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the The Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which meeting shall occur not later than sixty (60) days following the Closing Date June 30, 2007 (the “Stockholders Meeting Deadline”) (and shall use its commercially reasonable efforts to call the Stockholders Meeting prior to May 15, 2007), for the purpose purpose, inter alia, of seeking the approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion to permit, in compliance with Rule 4350(i) of the Series A Preferred Stock issued pursuant NASDAQ Marketplace Rules, the exercise price of the Warrants to this Agreement or be reduced to a price less than the other Purchase Agreements or Floor Price (as defined in Section 9(d)(4) of the Additional Private Placement Warrants) (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at connection therewith, a reasonable period of time prior to the Stockholders MeetingMeeting Deadline, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. The Company shall comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading; provided that the Company shall not be responsible for any information (i) provided by an Investor for inclusion in the Proxy Statement and relied upon by the Company in good faith, or (ii) required to be provided by any Investor for inclusion in the Proxy Statement pursuant to Section 4.10(b) but not so provided.
(b) Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statementthe Proxy Statement.
(bc) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at and shall take all commercially reasonable action (including, without limitation, the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with violate its fiduciary duty duties to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act Delaware General Corporation Law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase Proposal, and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(cd) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof Each Investor acknowledges, covenants and agrees that it (the “Term”), i) may not vote any Shares or Warrant Shares at the Stockholders Stockholder’s Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at or any adjournment or postponement thereof, and in any action by consent other meeting of the stockholders of the Company, each Investor and its Affiliates owning whether in person or by proxy, for, or take any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held stockholder action by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it written consent in favor respect of the Proposal and such other matters as may be necessary Shares or advisable Warrant Shares to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreementapprove, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless or any other proposal to approve the transferee has agreed for financing contemplated hereby, (ii) shall abstain from voting, and shall direct any proxy to abstain from voting, any of its Shares and Warrant Shares on, and shall refrain from acting by written consent in respect of any of its Shares and Warrant Shares to approve, the benefit of Proposal or any other proposal to approve the financing contemplated hereby. Each Investor hereby directs the Company not to be bound tally, count or validate any Shares or Warrant Shares voted, whether in person or by the provisions proxy, and to reject any written consent signed, in contravention of this Section 7.9(c4.10(d).
Appears in 1 contract
Samples: Securities Purchase Agreement (American Technology Corp /De/)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date August 31, 2014 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion and sale to the Investors of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement Securities (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicableProposal, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, each a “Proxy Statement”) and any form of proxy to be sent or made available to the stockholders of the Company in connection with the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting, and each Proxy Statement shall not, on the date that such Proxy Statement (or any amendment thereof or supplement thereto) is first mailed or made available to stockholders or at the time of the Stockholders Meeting or any Subsequent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting or, if applicable, any Subsequent Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the applicable Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and take all commercially reasonable action (including, without limitation, the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposal unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s 's Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act Delaware General Corporation Law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Purchase Agreement (Selectica Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement Agreement, the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty the sixtieth (6060th) days day following the Closing Signing Date (the “Stockholders Meeting Deadline”), ) for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion and sale to the Investors of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement Securities (the “Proposal”) to be issued and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders sold at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicableSecond Closing. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) and, after providing the Lead Investor and Lead Investor Counsel with an opportunity to review and comment on such proxy materials, file with the SEC such proxy materials for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Prior to responding to any comments of the SEC on such proxy materials, the Company shall furnish to the Lead Investor and Lead Investor Counsel a copy of any correspondence from the SEC relating the proxy materials and the proposed response to the SEC’s comments and provide the Lead Investor and Lead Investor Counsel with the opportunity to review and comment on such proposed response to the SEC. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement (as defined below). The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board provisions of Directors after consultation with the Company’s outside counsel)Section 9.15, the Company’s Board of Directors shall recommend to the Company’s stockholders (and, subject to the provisions of Section 9.15, not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal and shall cause the Board Increase Company to take all commercially reasonable action (each including, without limitation, the hiring of a “Company Board Recommendation”proxy solicitation firm of nationally recognized standing) at to solicit the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions approval of the immediately succeeding sentence. The Company covenants that stockholders for the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholdersProposal. Whether or not the Company’s Board of Directors modifiesdetermines at any time after the date hereof that, amends due to its fiduciary duties, it must revoke or withdraws either Company Board Recommendation pursuant amend its recommendation to the immediately preceding sentenceCompany’s stockholders, the Company shall be required to, and will take, in accordance with the Xxxxxxxx Islands Business Corporations Act applicable law and the provisions its Certificate of its Second Amended Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approvalProposal.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Purchase Agreement (Aerogen Inc)
Proxy Statement; Stockholders Meeting. (a) Promptly As soon as reasonably practicable following the execution and delivery date of this Agreement Agreement, but in no event later than five business days following the date hereof, the Company shall take all action necessary to call prepare and file with the SEC a meeting preliminary proxy statement (the “Proxy Statement”) with respect to, among other things, a proposal seeking the Stockholder Approval (the “Proposal”) at an Annual Meeting of its stockholders Stockholders (the “Stockholders Meeting”), which and shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or include in the Additional Private Placement (Proxy Statement the “Proposal”) and the increase of the size recommendation of the Company’s Board of Directors from eight to vote in favor of the Proposal. The Company will use its reasonable best efforts to (8) members i) cause the Proxy Statement to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by be delivered to the Company’s stockholders at as promptly as reasonably practicable following clearance thereof by the Stockholders Meeting, the Company shall take all action necessary to call up to three SEC and (3ii) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of hold the Stockholders Meeting and in no event more than one year after as promptly as reasonably practicable following clearance by the Closing Date to SEC of the extent reasonably practicable. In connection with Proxy Statement, provided that Company may postpone or adjourn the Stockholders Meeting and, (i) if applicable, each Subsequent Stockholders Meeting, a quorum has not been established; (ii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Company will has determined in good faith is necessary under applicable law; or (iii) to allow reasonable additional time to solicit additional proxies. The Company shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC to the Proxy Statement, to prepare and file with the SEC proxy materials pursuant the definitive Proxy Statement, and to and in compliance with Section 14(a) cause the definitive Proxy Statement to be mailed to its stockholders as promptly as practicable after the filing of the 1934 Act definitive Proxy Statement with the SEC. The Company shall notify Purchaser promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information, and shall supply Purchaser with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. Prior to filing or mailing the preliminary or definitive Proxy Statement (including a proxy statement and form of proxyor any amendment or supplement thereto) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and or responding to any the comments of the SEC thereon, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statement.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentencerespect thereto, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act and the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary shall provide Purchaser a reasonable opportunity to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase review such document or response and (ii) submit shall consider in good faith comments proposed by Purchaser on such document or response. Purchaser shall furnish all information as may reasonably be requested by the Proposal Company in connection with the preparation, filing and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders distribution of the Company for their approvalProxy Statement.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Securities Purchase Agreement (Cyclo Therapeutics, Inc.)
Proxy Statement; Stockholders Meeting. (a) i. Promptly following the execution and delivery of this Agreement Final Closing, the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) 60 days following the Final Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval (the “Stockholder Approval”) of the Company’s stockholders stockholders, among other things, for (w) the issuance of all Conversion Shares upon full conversion of the Series B Preferred Stock (as defined in the Certificate of Designation), (x) the issuance of all shares of Common Stock issuable upon conversion full exercise of the Series A Preferred Stock issued B Warrants and the Exchange Warrants, (y) the Subsequent Financing (as defined in the Certificate of Designation) exchange rights pursuant to this Agreement or Section 8 of the other Purchase Agreements or Certificate of Designation and (z) the participation of certain directors and officers of the Company as Investors, as applicable, in the Additional Private Placement Exchange and offering of the Securities for Cash Consideration hereunder, each in accordance with applicable law, the Company’s Amended and Restated Certificate of Incorporation, as amended, and Bylaws, and the applicable requirements of the Trading Market (as defined in the Certificate of Designation) (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board IncreaseProposals”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company's obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) ii. Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s 's Board of Directors shall recommend to the Company’s 's stockholders that the stockholders vote in favor of the Proposal and Proposals (the Board Increase (each a “Company Board Recommendation”) at and take all commercially reasonable action (including, without limitation, the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, hiring of a proxy solicitation firm of nationally recognized standing) to solicit the approval of the stockholders for the Proposals unless the Board of Directors shall have modified, amended or withdrawn such the Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either the Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such the Company Board Recommendation would be inconsistent with violate its fiduciary duty to the Company’s stockholders. Whether or not the Company’s 's Board of Directors modifies, amends or withdraws either the Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act applicable law and the provisions of its Second Amended Certificate and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase Proposals and (ii) submit the Proposal and the Board Increase Proposals at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
iii. If the Stockholder Approval has not been received on or prior to the ninetieth (c90th) From day following the date hereof until termination Final Closing, the Series B Shares will be redeemed automatically as described in Section 9 of this Agreement pursuant the Certificate of Designation.
iv. Each Investor agrees to Section 6.3 hereof (vote all shares of capital stock of the “Term”), Company that it beneficially owns in favor of the approval of the Proposals at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Convertible Preferred Stock and Warrant Securities Purchase Agreement (AzurRx BioPharma, Inc.)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date April 30, 2005 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for (i) the issuance and sale to the Investors of shares the Securities and (ii), the Reverse Split, (iii) the adoption of Common the Stock upon Option Plan (as defined below) and (iv) the increase in the Company’s capital stock in at least an amount as will allow the Company to satisfy its obligations under the Transaction Documents (including the conversion of the Notes and the Series A M Preferred Stock issued pursuant Stock) and under any other agreements or arrangements entered into by the Company prior to this Agreement or the other Purchase Agreements or in the Additional Private Placement date hereof (the “ProposalCapital Increase”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (collectively, the “Board IncreaseProposals”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders (and, subject to their fiduciary obligations, not revoke or amend such recommendation) that the stockholders vote in favor of the Proposal Proposals and shall cause the Board Increase (each a “Company Board Recommendation”) at to take all commercially reasonable action to solicit the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions approval of the immediately succeeding sentence. The Company covenants that stockholders for the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholdersProposals. Whether or not the Company’s Board of Directors modifiesdetermines at any time after the date hereof that, amends due to its fiduciary duties, it must revoke or withdraws either Company Board Recommendation pursuant amend its recommendation to the immediately preceding sentenceCompany’s stockholders, the Company shall be required to, and will take, in accordance with the Xxxxxxxx Islands Business Corporations Act applicable law and the provisions its Certificate of its Second Amended Incorporation and Restated Articles of IncorporationBy-laws, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approvalProposals.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, the Company will prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and responding to any comments of the SEC thereon, shall mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each proxy statement.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and the Board Increase (each a “Company Board Recommendation”) at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, unless the Board of Directors shall have modified, amended or withdrawn such Company Board Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company shall not modify, amend or withdraw either Company Board Recommendation unless the Board of Directors (after consultation with the Company’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board Recommendation would be inconsistent with its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors modifies, amends or withdraws either Company Board Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with the Xxxxxxxx Islands Business Corporations Act and the provisions of its Second Amended and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders Meeting, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).the
Appears in 1 contract
Samples: Purchase Agreement (Apollo Management Holdings GP, LLC)
Proxy Statement; Stockholders Meeting. (a) Promptly following the execution and delivery of this Agreement the Company shall take all action necessary to call a meeting of its stockholders (the “Stockholders Meeting”), which shall occur not later than sixty (60) days following the Closing Date September 30, 2010 (the “Stockholders Meeting Deadline”), for the purpose of seeking approval of the Company’s stockholders for the issuance of shares of Common Stock upon conversion and sale to the Investors of the Series A Preferred Stock issued pursuant to this Agreement or the other Purchase Agreements or in the Additional Private Placement Securities under Nasdaq rules (the “Proposal”) and the increase of the size of the Company’s Board of Directors from eight (8) members to nine (9) members (the “Board Increase”). In the event the Proposal or the Board Increase is not approved by the Company’s stockholders at the Stockholders Meeting, the Company shall take all action necessary to call up to three (3) additional meetings of its stockholders (each a “Subsequent Stockholders Meeting”) for the purpose of seeking approval of the Proposal or the Board Increase as applicable, to be held promptly following the completion of the Stockholders Meeting and in no event more than one year after the Closing Date to the extent reasonably practicable. In connection with the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meetingtherewith, the Company will promptly prepare and file with the SEC proxy materials pursuant to and in compliance with Section 14(a) of the 1934 Act (including a proxy statement and form of proxy) for use at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, and, after receiving and promptly responding to any comments of the SEC thereon, shall promptly mail such proxy materials (or, if permitted, notice of the availability of such proxy materials) to the stockholders of the Company. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and its investment in the Company as the Company may reasonably request for inclusion in each the Proxy Statement. The Company will comply with Section 14(a) of the 1934 Act and the rules promulgated thereunder in relation to any proxy statementstatement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting, any event relating to the Company or any of its Subsidiaries or any of their respective Affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the 1934 Act, the Company will promptly inform the Investors thereof.
(b) Subject to their fiduciary obligations under applicable law (as determined in good faith by the Company’s Board Special Committee of Directors after consultation with the Company’s outside counsel), the Company’s Board of Directors (the “Committee”) after consultation with the Committee’s counsel), the Committee shall recommend to the Company’s stockholders that the stockholders vote in favor of the Proposal and (the Board Increase (each a “Company Board Committee Recommendation”) at and take all commercially reasonable action to solicit the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, approval of the stockholders for the Proposal unless the Board of Directors Committee shall have modified, amended or withdrawn such Company Board the Committee Recommendation pursuant to the provisions of the immediately succeeding sentence. The Company covenants that the Board of Directors of the Company Committee shall not modify, amend or withdraw either Company Board the Committee Recommendation unless the Board of Directors Committee (after consultation with the CompanyCommittee’s outside counsel) shall determine in the good faith exercise of its business judgment that maintaining such Company Board the Committee Recommendation would be inconsistent with violate its fiduciary duty to the Company’s stockholders. Whether or not the Company’s Board of Directors Committee modifies, amends or withdraws either Company Board the Committee Recommendation pursuant to the immediately preceding sentence, the Company shall in accordance with Section 146 of the Xxxxxxxx Islands Business Corporations Act Delaware General Corporation Law and the provisions of its Second Amended Certificate of Incorporation and Restated Articles of Incorporation, as amended, or its Amended and Restated Bylaws, (i) take all action reasonably necessary to convene the Stockholders Meeting and, if necessary, each Subsequent Stockholders Meeting as promptly as practicable, but no later than the Stockholders Meeting Deadline with respect to the Stockholders Meeting and as soon as practicable with respect to each Subsequent Stockholders MeetingDeadline, to consider and vote upon the approval of the Proposal and the Board Increase and (ii) submit the Proposal and the Board Increase at the Stockholders Meeting or, if applicable, each Subsequent Stockholders Meeting to the stockholders of the Company for their approval.
(c) From the date hereof until termination of this Agreement pursuant to Section 6.3 hereof (the “Term”), at the Stockholders Meeting and, if applicable, each Subsequent Stockholders Meeting, however called and at any adjournment or postponement thereof, and in any action by consent of the stockholders of the Company, each Investor and its Affiliates owning any shares of Common Stock shall (A) appear at such meeting or otherwise cause all shares of Common Stock held by it to be counted as present thereat for purposes of establishing a quorum and (B) vote (or cause to be voted) all shares of Common Stock held by it in favor of the Proposal and such other matters as may be necessary or advisable to consummate the transactions contemplated by the Purchase Agreement; provided that no Investor or its Affiliates shall be under any obligation hereunder with respect to any vote regarding the Board Increase. During the term of this Agreement, no such Investor or its Affiliates shall transfer any shares of Common Stock prior to shareholder approval of the Proposal unless the transferee has agreed for the benefit of the Company to be bound by the provisions of this Section 7.9(c).
Appears in 1 contract
Samples: Purchase Agreement (Glu Mobile Inc)