SEC Filings; Other Actions. (a) As promptly as reasonably practicable (and in any event within fifteen (15) Business Days) after the execution of this Agreement, the Company shall prepare and file the Proxy Statement with the SEC, which shall, subject to Section 5.3, include the Company Board Recommendation. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC, and the Company shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto. As promptly as reasonably practicable after the execution of this Agreement, the Company shall set, in consultation with Parent, a record date for the Company Meeting (which shall be called in accordance with Section 5.4(b)) and commence a broker search pursuant to Section 14a-13 of the Exchange Act in respect thereof. The Company shall use all commercially reasonable efforts to respond as promptly as practicable to comments by the SEC staff in respect of the Proxy Statement, and to cause the definitive Proxy Statement to be mailed, as promptly as practicable (and in any event within five (5) Business Days) after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, to the Company’s stockholders as of the record date for the Company Meeting (as established in accordance with the preceding sentence). The Company shall provide Parent and its counsel with copies of any written comments, and shall provide them a summary of any oral comments, that the Company or its counsel receive from the SEC or its staff with respect to the Proxy Statement as promptly as practicable after receipt of such comments, and any written or oral responses thereto. Parent and its counsel shall be given a reasonable opportunity to review any such responses and the Company shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto. Parent and Merger Sub shall furnish all information that is customarily included in a proxy statement prepared in connection with transactions of the type contemplated by this Agreement concerning themselves and their affiliates as promptly as practicable after the date hereof. (b) Subject to the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with the DGCL, the Company Charter, and the Company Bylaws to duly call, give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable following (and shall use reasonable best efforts to hold such meeting within thirty (30) Business Days after) the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”), and (ii) subject to a Change of Board Recommendation in accordance with Section 5.3, shall include the Company Board Recommendation in the Proxy Statement and use all commercially reasonable efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and the Transactions contemplated hereby (including by postponing or adjourning the Company Meeting to allow additional solicitation of proxies in order to obtain the Company Stockholder Approval if necessary). The Company may, if it receives an unsolicited Acquisition Proposal or if the Company Board otherwise determines in good faith after consultation with outside counsel that the Company’s stockholders should be provided with additional information, delay the mailing of the Proxy Statement or the holding of the Company Meeting, in each case for such reasonable period as would provide a reasonable opportunity for the Company Board to consider such Acquisition Proposal or such additional information and to determine the effect, if any, on the Company Board Recommendation. The Company may also postpone or adjourn the Company Meeting from time to time (i) with the consent of Parent, (ii) if a quorum has not been established, (iii) to the extent necessary to file and mail any supplemental or amended disclosure which the Company Board has determined in good faith is necessary and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Meeting, (iv) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (v) if required by Law. (c) If, at any time prior to the Company Meeting, any information relating to the Company or Parent, Merger Sub, the Guarantor, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall as promptly as practicable notify the other party. Following such notification, the Company shall prepare and file with the SEC an appropriate amendment or supplement to the Proxy Statement describing such information as promptly as reasonably practicable and shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto, and, to the extent required by applicable Law or the SEC or its staff, the Company shall disseminate such amendment or supplement to the stockholders of the Company.
Appears in 1 contract
SEC Filings; Other Actions. (a) As promptly as reasonably practicable (and in any event within fifteen (15) Business Days) after following the execution date of this Agreement, the Company shall will prepare and file the Proxy Statement with the SEC, which shall, subject cause to Section 5.3, include the Company Board Recommendation. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC, with the assistance of the Purchaser Parties, the Proxy Statement, and the Company and the Purchaser Parties will prepare and cause to be filed with the SEC the Schedule 13E-3. The Purchaser Parties and the Company will use reasonable best efforts to cooperate with each other in connection with the preparation of the foregoing documents. Each of the Purchaser Parties will use reasonable best efforts to promptly provide such information regarding Purchaser Parties and any other member of the Purchaser Group that the Company may reasonably request for inclusion in the Proxy Statement and Schedule 13E-3. Each of the Company and the Purchaser Parties shall consider use its reasonable best efforts so that the Proxy Statement and the Schedule 13E-3 comply in good faith all material respects with the requirements of the Exchange Act and incorporate all comments the rules and regulations promulgated thereunder. Each of the Company and the Purchaser Parties will use its reasonable best efforts to have the Proxy Statement and the Schedule 13E-3, cleared by the SEC as promptly as reasonably proposed by Parent, Merger Sub and their counsel with respect theretopracticable after such filing. As The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s stockholders as promptly as reasonably practicable after the execution of this Agreement, date the Company shall set, in consultation with Parent, a record date for Proxy Statement is cleared by the Company Meeting (which shall be called in accordance with Section 5.4(b)) and commence a broker search pursuant to Section 14a-13 of the Exchange Act in respect thereofSEC. The Company shall use all commercially reasonable efforts to respond will as promptly as reasonably practicable to notify Parent of the receipt of any oral or written comments by from the SEC staff in respect of relating to the Proxy Statement, and to cause the definitive Proxy Statement to be mailed, as promptly as practicable (and in any event within five (5) Business Days) after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, to the Company’s stockholders as of the record date for the Company Meeting (as established in accordance with the preceding sentence). The Company shall will reasonably cooperate and provide Parent and its counsel with copies of any written comments, and shall provide them a summary of any oral comments, that the Company or its counsel receive from the SEC or its staff with respect to the Proxy Statement as promptly as practicable after receipt of such comments, and any written or oral responses thereto. Parent and its counsel shall be given a reasonable opportunity to review any such responses and comment on the draft of the Proxy Statement (including each amendment or supplement thereto), and the Purchaser Parties and the Company shall consider will cooperate and provide each other with a reasonable opportunity to review and comment in good faith on the draft Schedule 13E-3 (including each amendment or supplement thereto) and incorporate all responses to requests for additional information by and replies to comments reasonably proposed by Parentof the SEC, Merger Sub prior to filing such with or sending such to the SEC, and their counsel the Purchaser Parties and the Company will provide each other with copies of all such filings made and correspondence with the SEC with respect thereto. Parent and Merger Sub shall furnish all information that is customarily included in a proxy statement prepared in connection with transactions of Notwithstanding the type contemplated by this Agreement concerning themselves and their affiliates as promptly as practicable after the date hereof.
(b) Subject to the other provisions of this Agreementforegoing, the Company shall (i) take all action necessary assumes no responsibility with respect to information supplied in accordance with the DGCL, the Company Charter, and the Company Bylaws to duly call, give notice of, convene and hold a meeting writing by or on behalf of its stockholders as promptly as reasonably practicable following (and shall use reasonable best efforts to hold such meeting within thirty (30) Business Days after) the mailing of the Proxy Statement any Purchaser Party for the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”), and (ii) subject to a Change of Board Recommendation in accordance with Section 5.3, shall include the Company Board Recommendation inclusion or incorporation by reference in the Proxy Statement and use all commercially reasonable efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and the Transactions contemplated hereby (including by postponing or adjourning the Company Meeting to allow additional solicitation of proxies in order to obtain the Company Stockholder Approval if necessary)Statement. The Company may, if it receives an unsolicited Acquisition Proposal or if the Company Board otherwise determines in good faith after consultation with outside counsel that the Company’s stockholders should be provided with additional information, delay the mailing of the Proxy Statement or the holding of the Company Meeting, in each case for such reasonable period as would provide a reasonable opportunity for the Company Board to consider such Acquisition Proposal or such additional information and to determine the effect, if any, on the Company Board Recommendation. The Company may also postpone or adjourn the Company Meeting from time to time (i) with the consent of Parent, (ii) if a quorum has not been established, (iii) to the extent necessary to file and mail any supplemental or amended disclosure which the Company Board has determined in good faith is necessary and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Meeting, (iv) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (v) if required by Law.
(c) If, If at any time prior to the Company Meeting, any information relating to the Company or Parent, Merger Sub, the Guarantor, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is should be discovered by the Company or Parent that any Party which should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13E-3 so that such document the Proxy Statement or the Schedule 13E-3 would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are were made, not misleading, the party that Party which discovers such information shall as will promptly as practicable notify the other party. Following such notification, the Company shall prepare and file with the SEC an appropriate amendment or supplement to the Proxy Statement describing such information as promptly as reasonably practicable and shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto, parties and, to the extent required by applicable Law or the SEC or its staffLaw, the Company shall disseminate such an appropriate amendment or supplement describing such information shall be promptly filed by the appropriate Party with the SEC and disseminated by the Company to the stockholders of the Company.
(b) The Company shall (i) use reasonable efforts to take all action required under the DGCL and its Organizational Documents to duly call, give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable following the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval and the Majority of the Minority Approval (the “Company Meeting”), with the record date and meeting date of the Company Meeting to be mutually agreed by the Company and Parent, and (ii) subject to a Change in Recommendation in accordance with Section 6.3, use all reasonable efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and approval of the Contemplated Transactions. Notwithstanding anything to the contrary contained in this Agreement, the Company may, and at the direction of Parent the Company will, adjourn or postpone the Company Meeting, if and to the extent any Independent Committee or Parent, as the case may be, determines in good faith (A) such adjournment or postponement is necessary to ensure that any supplement or amendment to the Proxy Statement that is required by applicable Law is timely provided to the Company’s stockholders or (B) additional time is required to solicit proxies in favor of the adoption of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Isramco Inc)
SEC Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement (and and, in any event within fifteen event, no later than thirty (1530) Business Days) Days after the execution date of this Agreement), the Company shall Company, with the assistance of Parent and Merger Sub, will prepare and file the Proxy Statement with the SEC, which shall, subject cause to Section 5.3, include the Company Board Recommendation. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC, the Proxy Statement and the Company shall consider in good faith Schedule 13E-3. Parent and incorporate all comments reasonably proposed by Parent, Merger Sub shall promptly furnish all information as the Company may reasonably request in connection with such actions and their counsel the preparation of the Proxy Statement the Schedule 13E-3. Each of the Company, Parent and Merger Sub shall use its reasonable best efforts so that the Proxy Statement and the Schedule 13E-3 comply in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. The Company, with the assistance of, and after consultation with, Parent and Merger Sub, shall use its reasonable best efforts to (a) respond, as promptly as reasonably practicable, to any comments received from the staff of the SEC with respect thereto. As to such filings of the Proxy Statement and the Schedule 13E-3, (b) prepare and file, as promptly as reasonably practicable, any amendments or supplements necessary to be filed in response to any such comments or as required by applicable Law, (c) have cleared by the staff of the SEC the Proxy Statement and the Schedule 13E-3, and (d) to the extent required by applicable Law, as promptly as reasonably practicable, prepare, file and distribute to the stockholders any supplement or amendment to the Proxy Statement or the Schedule 13E-3 if any event shall occur as promptly as reasonably practicable after the execution of this Agreement, date the Company shall set, in consultation with Parent, a record date for Proxy Statement is cleared by the Company Meeting (which shall be called in accordance with Section 5.4(b)) and commence a broker search pursuant to Section 14a-13 of the Exchange Act in respect thereofSEC. The Company shall use all commercially reasonable efforts to respond as promptly as reasonably practicable to notify Parent of the receipt of any written comments by from the SEC staff in respect of relating to the Proxy Statement, and to cause the definitive Proxy Statement to be mailed, as promptly as practicable (and in any event within five (5) Business Days) after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, to the Company’s stockholders as of the record date for the Company Meeting (as established in accordance with the preceding sentence). The Company shall will reasonably cooperate and provide Parent and its counsel with copies of any written comments, and shall provide them a summary of any oral comments, that the Company or its counsel receive from the SEC or its staff with respect to the Proxy Statement as promptly as practicable after receipt of such comments, and any written or oral responses thereto. Parent and its counsel shall be given a reasonable opportunity to review any such responses and comment on the Company draft of the Proxy Statement (including each amendment or supplement thereto), and shall consider provide Parent with a reasonable opportunity to review and comment in good faith on the draft Schedule 13E-3 (including each amendment or supplement thereto) and incorporate all responses to requests for additional information by and replies to comments reasonably proposed of the SEC, prior to filing such with or sending such to the SEC, and shall provide Parent with copies of all such filings made and correspondence with the SEC with respect thereto; provided, however, that nothing in this Section 7.1 shall limit or preclude the Board or the Special Committee from effecting a Change of Company Recommendation; provided, further, that no representation, warranty, covenant or agreement is made by the Company with respect to information supplied by Parent, Merger Sub Sub, the Rollover Shareholders, Ruili Group, or their respective Affiliates or Representatives for inclusion or incorporation by reference in the Proxy Statement and their counsel with respect thereto. Parent and Merger Sub shall furnish all information that is customarily included in a proxy statement prepared in connection with transactions of the type contemplated by this Agreement concerning themselves and their affiliates as promptly as practicable after the date hereofSchedule 13E-3.
(b) Subject Notwithstanding anything herein to the other provisions contrary, and subject to compliance with the terms of this AgreementSection 6.2(f), in connection with any disclosure regarding a Change in Company Recommendation, the Company shall (i) take all action necessary in accordance not be required to provide Parent or Merger Sub with the DGCLopportunity to review or comment on (or include comments proposed by Parent or Merger Sub in) the Schedule 13E-3 or the Proxy Statement, or any amendment or supplement thereto, or any comments thereon or another filing by the Company Charter, and the Company Bylaws to duly call, give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable following (and shall use reasonable best efforts to hold such meeting within thirty (30) Business Days after) the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”), and (ii) subject to a Change of Board Recommendation in accordance with Section 5.3, shall include the Company Board Recommendation in the Proxy Statement and use all commercially reasonable efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and the Transactions contemplated hereby (including by postponing or adjourning the Company Meeting to allow additional solicitation of proxies in order to obtain the Company Stockholder Approval if necessary). The Company may, if it receives an unsolicited Acquisition Proposal or if the Company Board otherwise determines in good faith after consultation with outside counsel that the Company’s stockholders should be provided with additional information, delay the mailing of the Proxy Statement or the holding of the Company Meeting, in each case for such reasonable period as would provide a reasonable opportunity for the Company Board to consider such Acquisition Proposal or such additional information and to determine the effect, if any, on the Company Board Recommendation. The Company may also postpone or adjourn the Company Meeting from time to time (i) with the consent of ParentSEC, (ii) if a quorum has not been established, (iii) with respect to the extent necessary to file and mail any supplemental or amended disclosure which the Company Board has determined in good faith is necessary and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Meeting, (iv) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (v) if required by Law.
(c) If, disclosure. If at any time prior to the Company Stockholders’ Meeting, any information relating to the Company or Parent, Merger Sub, the Guarantor, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is should be discovered by the Company or Parent that any party which should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13E-3 so that such document the Proxy Statement or the Schedule 13E-3 would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are were made, not misleading, the party that which discovers such information shall as will promptly as practicable notify the other party. Following such notification, the Company shall prepare and file with the SEC an appropriate amendment or supplement to the Proxy Statement describing such information as promptly as reasonably practicable and shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto, parties and, to the extent required by applicable Law or the SEC or its staffLaw, the Company shall disseminate such an appropriate amendment or supplement describing such information shall be promptly filed by the appropriate party with the SEC and, to the extent required by applicable Law, disseminated by the Company to the stockholders of the Company.
Appears in 1 contract
SEC Filings; Other Actions. (a) As promptly as reasonably practicable (and in any event within fifteen (15) Business Days) after the execution of this Agreement, the Company shall prepare and file the Proxy Statement in preliminary form with the SEC, which shall, subject to Section 5.3, include the Company Board Recommendation. ParentThe Company shall provide Parent and Merger Sub, Merger Sub and their counsel shall be given counsel, a reasonable opportunity to review the Proxy Statement before it is filed with the SEC, and the Company shall consider in good faith give due consideration to any reasonable additions, deletions or changes suggested thereto by Parent and incorporate all comments reasonably proposed by Parent, Merger Sub and or their counsel with respect thereto. As promptly as reasonably practicable after the execution of this Agreement, the Company shall set, in consultation with Parent, a record date for the Company Meeting (which shall be called in accordance with Section 5.4(b)) and commence a broker search pursuant to Section 14a-13 of the Exchange Act in respect thereofcounsel. The Company shall use all commercially reasonable best efforts to respond as promptly as practicable to comments by the SEC staff in respect of the Proxy Statement, Statement and to cause the definitive Proxy Statement to be mailed, as promptly as practicable (and in any event within five (5) Business Days) after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, mailed to the Company’s stockholders as of the record date established for the Company Meeting as promptly as practicable after the date of this Agreement, and shall take all necessary actions to set a record date for the Company Meeting promptly (as established including conducting “broker searches” in accordance with Rule 14a-13 of the preceding sentence)Exchange Act, and setting a preliminary record date) to accommodate such a mailing date. The Company shall notify Parent promptly of the receipt of any comments from the SEC or the staff of the SEC (the “Staff”) and of any request by the SEC or the Staff for amendments or supplements to the Proxy Statement or for additional information and provide Parent and its counsel with copies of any all correspondence (including written comments) between it or any of its Representatives, on the one hand, and the SEC or the Staff, on the other hand, with respect to the Proxy Statement, this Agreement, the Voting Agreements or the Transactions, including the Merger, and shall provide them a summary of any oral comments, that the Company or its counsel receive from the SEC or its staff the Staff with respect to the Proxy Statement as promptly as practicable after receipt of such comments, and any proposed written or oral responses thereto. The Company shall provide Parent and its counsel shall be given a reasonable opportunity to review any such responses or filing of, or amendment or supplement to, the Proxy Statement or any other SEC filing related to Parent, Merger Sub, their affiliates or the transactions contemplated by this Agreement (such responses and other SEC filing, an “Other Company Filing”) and the Company shall consider in good faith give due consideration to the reasonable additions, deletions or changes suggested thereto by Parent and incorporate its counsel. The Company shall promptly provide Parent with copies of all comments reasonably proposed by Parentsuch filings, Merger Sub and their counsel with respect theretoamendments or supplements to the extent not readily publicly available. Parent and Merger Sub shall furnish all information that is customarily included in a proxy statement prepared in connection with transactions of the type contemplated by this Agreement concerning themselves and their affiliates as promptly as practicable after the date hereof. The Company agrees that all information related to Parent and its affiliates included in the Proxy Statement or Other Company Filing shall be in form and content reasonably satisfactory to Parent.
(b) Subject to the other provisions of this Agreement, the Company shall (i) shall take all action necessary in accordance with the DGCL, the rules of the NYSE, the Company Charter, and the Company Bylaws to duly call, give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable following (and shall use reasonable best efforts to hold such meeting within thirty (30) Business Days after) the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”), and (ii) subject to a Change of Board Recommendation in accordance with Section 5.3, shall include the Company Board Recommendation in the Proxy Statement and use all commercially reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and the Transactions contemplated hereby (including by by, in consultation with Parent and subject to the last sentence of this Section 5.4(b), postponing or adjourning the Company Meeting to allow additional solicitation of proxies in order to obtain the Company Stockholder Approval if necessary). The Company mayshall keep Parent reasonably informed on a reasonably current basis, if it receives an unsolicited Acquisition Proposal or if and promptly upon Parent’s request, of the status of its efforts to solicit and obtain the Company Board otherwise determines in good faith after consultation with outside counsel that the Company’s stockholders should be provided with additional information, delay the mailing of the Proxy Statement or the holding of Stockholder Approval. The Company shall permit Parent and its Representatives to attend the Company Meeting, in each case for such reasonable period as would provide a reasonable opportunity for the Company Board to consider such Acquisition Proposal or such additional information and to determine the effect, Meeting if any, on the Company Board Recommendationrequested by Parent. The Company may also postpone or adjourn the Company Meeting from time to time (i) with the consent of ParentParent (not to be unreasonably withheld, conditioned or delayed), (ii) if a quorum has not been established, (iii) to allow reasonable additional time for the extent necessary to file filing and mail mailing of any supplemental or amended disclosure which the Company Board has determined in good faith faith, after consultation with outside legal counsel, is necessary required under applicable Law and for such supplemental or amended disclosure to be disseminated in a manner suitable under applicable Law and reviewed by the Company’s stockholders prior to the Company MeetingMeeting (it being understood that such filing and mailing shall occur as promptly as practicable), (iv) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (v) if required by specific provision of applicable Law. The foregoing notwithstanding, the Company may not, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed) or except as expressly required by an Order, postpone or adjourn the Company Meeting for a period of more than 10 Business Days on any single occasion or, in the case of clause (ii), (iii) or (iv), on any occasion, to a date after the earlier of (x) 45 Business Days after the date on which the Company Meeting was originally scheduled and (y) 10 Business Days before the Outside Date. Without the prior written consent of Parent, the matters contemplated by the Company Stockholder Vote shall be the only matters (other than matters of procedure and matters required by or advisable under applicable Law to be voted on by the Company’s stockholders in connection therewith) that the Company shall propose to be voted on by the stockholders of the Company at the Company Meeting.
(c) IfNotwithstanding a Change of Board Recommendation, the Company shall nonetheless submit this Agreement to the holders of Shares for adoption at any time the Company Meeting unless this Agreement is terminated in accordance with Article 7 prior to the Company Meeting, any information relating to the Company or Parent, Merger Sub, the Guarantor, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall as promptly as practicable notify the other party. Following such notification, the Company shall prepare and file with the SEC an appropriate amendment or supplement to the Proxy Statement describing such information as promptly as reasonably practicable and shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto, and, to the extent required by applicable Law or the SEC or its staff, the Company shall disseminate such amendment or supplement to the stockholders of the Company.
Appears in 1 contract
SEC Filings; Other Actions. (a) As promptly as reasonably practicable (and in any event within fifteen (15) Business Days) after the execution of this Agreement, the Company shall prepare and file the Proxy Statement with the SEC, which shall, subject to Section 5.3, include the Company Board Recommendation. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC, and the Company shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto. As promptly as reasonably practicable after the execution of this Agreement, the Company shall set, use reasonable best efforts to prepare and file a proxy statement with the SEC in consultation with Parent, a record date for preliminary form relating to the Company Meeting (such proxy statement, including any amendment or supplement thereto, the “Proxy Statement”), which shall, unless the Company Board shall be called have made an Adverse Recommendation Change in accordance compliance with Section 5.4(b)) and commence a broker search pursuant to Section 14a-13 of the Exchange Act in respect thereof. The Company shall use all commercially reasonable efforts to respond as promptly as practicable to comments by the SEC staff in respect of the Proxy Statement5.3, and to cause the definitive Proxy Statement to be mailed, as promptly as practicable (and in any event within five (5) Business Days) after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, to the Company’s stockholders as of the record date for include the Company Meeting (as established in accordance with the preceding sentence). The Company shall provide Parent and its counsel with copies of any written comments, and shall provide them a summary of any oral comments, that the Company or its counsel receive from the SEC or its staff with respect to the Proxy Statement as promptly as practicable after receipt of such comments, and any written or oral responses theretoBoard Recommendation. Parent and its counsel Merger Sub, and their counsel, shall be given a reasonable opportunity to review and comment on the Proxy Statement, including all amendments and supplements thereto, before it (or such amendment or supplement) is filed with the SEC or disseminating any such documents or any responses relating to such documents to the Company Stockholders, and the Company shall consider give due consideration in good faith to any additions, deletions or changes suggested thereto by Parent and incorporate all comments reasonably proposed by Parent, Merger Sub and or their counsel with respect theretocounsel. Parent and Merger Sub shall furnish all information that is customarily included in a proxy statement prepared in connection with transactions of the type contemplated by this Agreement concerning themselves and their affiliates as promptly as practicable after the date hereof.
(b) Subject The Company, Parent and Merger Sub shall cooperate to, concurrently with the preparation and filing of the Proxy Statement, jointly prepare and file with the SEC a Rule 13e-3 Transaction Statement on Schedule 13E-3 (such transaction statement, including any amendment or supplement thereto, the “Schedule 13E-3”) relating to the other provisions of transactions contemplated by this Agreement, the . The Company shall provide the Parent and Merger Sub with a reasonable opportunity to review and comment on the Schedule 13E-3, including all amendments and supplements thereto, prior to filing the Schedule 13E-3 (ior such amendment or supplement) take all action necessary in accordance with the DGCL, the Company CharterSEC, and the Company Bylaws shall give due consideration in good faith to duly callany additions, give notice ofdeletions or changes suggested thereto by Parent and Merger Sub or their counsel.
(c) The Company shall promptly notify Parent and Merger Sub, convene and hold Parent and Merger Sub shall promptly notify the Company, as applicable, of the receipt of all comments from the SEC with respect to the Proxy Statement or Schedule 13E-3 and of any request by the SEC for any amendment or supplement thereto or for additional information and shall reasonably promptly provide the other party and its counsel with copies of any written comments and a meeting summary of any oral comments that such party or any of its stockholders Representatives receive from the SEC or its staff with respect to the Proxy Statement or the Schedule 13E-3, as applicable, as promptly as reasonably practicable following (after receipt of such comments, and any written or oral responses thereto. Each of the Company, Parent and Merger Sub shall use provide the other parties and their respective outside legal counsel with a reasonable best efforts opportunity to hold review any such meeting within thirty (30) Business Days after) responses and the mailing Company shall give due consideration in good faith to the additions, deletions or changes suggested thereto by Xxxxxx and Xxxxxx Sub and their counsel. Each of the Company, Parent and Merger Sub shall provide the other parties and their respective outside legal counsel and other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC with respect to the Proxy Statement for or the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”)Schedule 13E-3, as applicable. The Company, Parent and (ii) subject to a Change of Board Recommendation in accordance with Section 5.3, Merger Sub shall include the Company Board Recommendation in the Proxy Statement and use all commercially reasonable efforts to solicit from its stockholders proxies respond as promptly as practicable to comments by the SEC staff in favor of the adoption of this Agreement and the Transactions contemplated hereby (including by postponing or adjourning the Company Meeting to allow additional solicitation of proxies in order to obtain the Company Stockholder Approval if necessary). The Company may, if it receives an unsolicited Acquisition Proposal or if the Company Board otherwise determines in good faith after consultation with outside counsel that the Company’s stockholders should be provided with additional information, delay the mailing respect of the Proxy Statement or the holding Schedule 13E-3, and the Company shall cause the definitive Proxy Statement and Schedule 13E-3 to be mailed to the Company Stockholders as of the record date established for the Company Meeting as promptly as possible after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement (such date, the “SEC Clearance Date”).
(d) The Company agrees, as to itself and its Subsidiaries, that the Proxy Statement will comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. The Company, Parent and Merger Sub agree, as to themselves and their Affiliates, that the Schedule 13E-3 will comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. The Company, Parent and Merger Sub shall ensure that none of the information supplied by it for inclusion or incorporation by reference in the Proxy Statement or Schedule 13E-3 will, at the date of mailing to stockholders of the Company or at the time of the Company Meeting, in each case for such reasonable period as would provide a reasonable opportunity for the Company Board to consider such Acquisition Proposal or such additional information and to determine the effect, if any, on the Company Board Recommendation. The Company may also postpone or adjourn the Company Meeting from time to time (i) with the consent of Parent, (ii) if a quorum has not been established, (iii) to the extent necessary to file and mail contain any supplemental or amended disclosure which the Company Board has determined in good faith is necessary and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Meeting, (iv) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (v) if required by Law.
(c) If, at any time prior to the Company Meeting, any information relating to the Company or Parent, Merger Sub, the Guarantor, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading; provided, however, that (i) the Company assumes no responsibility with respect to information supplied by or on behalf of Parent, Merger Sub, their respective Affiliates or its or their respective Representatives for inclusion or incorporation by reference in the Proxy Statement or Schedule 13E-3 and (ii) Parent and Merger Sub assume no responsibility with respect to information supplied by or on behalf of the Company, its Affiliates or its or their respective Representatives for inclusion or incorporation by reference in the Proxy Statement or Schedule 13E-3. If at any time prior to the Company Meeting, any information relating to the Company, Parent or Merger Sub, or any of their respective Affiliates or its or their respective Representatives, should be discovered by a party, which information should be set forth in an amendment or supplement to the Proxy Statement or Schedule 13E-3, as applicable, so that either the Proxy Statement or Schedule 13E-3 would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall as promptly as practicable following such discovery notify the other party. Following party or parties (as the case may be) and after such notification, as and to the extent required by applicable Law, (A) the Company shall promptly prepare and file (with the SEC assistance of Parent and Merger Sub as provided for in this Section 5.13) an appropriate amendment or supplement to the Proxy Statement, (B) the Company, Parent and Merger Sub shall promptly prepare an amendment or supplement to the Schedule 13E-3 and/or (C) the Company shall cause the Proxy Statement describing such information or Schedule 13E-3 as so amended or supplemented to be filed with the SEC and to be disseminated to its stockholders.
(e) Unless this Agreement is terminated in accordance with its terms, the Company shall (i) as promptly as reasonably practicable and shall consider take all action necessary in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel accordance with respect thereto, and, to the extent required by applicable Law or the SEC or its staffDGCL, the Company Organizational Documents to duly call, give notice of, convene and hold a meeting of the Company Stockholders as promptly as reasonably practicable after the SEC Clearance Date (which meeting shall disseminate such amendment or supplement in no event be scheduled initially for a date that is later than the 35th day following the first mailing of the Proxy Statement to the stockholders of the CompanyCompany without the written consent of Parent), for the purpose of obtaining the Company Stockholder Approval and the Amendment Approval (the “Company Meeting”), and (ii) subject to an Adverse Recommendation Change in compliance with Section 5.3, shall include the Company Board Recommendation in the Proxy Statement and use all commercially reasonable efforts to solicit from the Company Stockholders proxies in favor of the adoption of this Agreement and the Merger Transactions, and obtain the Company Stockholder Approval, and shall not postpone or adjourn the Company Meeting, except to the extent advised by counsel to be necessary to comply with Law or pursuant to the following sentence. The Company may postpone or adjourn the Company Meeting from time to time (A) with the consent of Parent, (B) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Company Board (after consultation with outside legal counsel) has determined in good faith is necessary or advisable and for such supplemental or amended disclosure to be disseminated and reviewed by the Company Stockholders prior to the Company Meeting, (C) to solicit additional proxies, if the Company reasonably believes there will be insufficient shares of capital stock of the Company represented (either in person or by proxy) to constitute a quorum necessary either to conduct the business of the Company Meeting or to obtain the Company Stockholder Approval (it being understood that the Company may not postpone or adjourn the Company Meeting on more than two (2) occasions or for more than two (2) months in the aggregate pursuant to this Section 5.13(e) without Parent’s prior written consent) or (D) if required by Law; provided, however, that no such postponement or adjournment shall delay the Company Meeting by more than ten (10) calendar days from the prior-scheduled date or to a date on or after the fifth (5th) Business Day preceding the Outside Date. The Company shall provide Parent and Merger Sub with a reasonable opportunity to review drafts of any documents related to the Company Meeting and will consider in good faith any comments provided by Xxxxxx and Merger Sub or their counsel in connection with such review.
Appears in 1 contract
SEC Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement (and and, in any event within fifteen event, no later than thirty-five (1535) Business Days) days after the execution date of this Agreement), the Company shall will prepare and file the Proxy Statement with the SEC, which shall, subject cause to Section 5.3, include the Company Board Recommendation. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC, with the assistance of the Purchaser Parties, the Proxy Statement, and the Company, Tahoe, Parent and THAIHOT will prepare and cause to be filed with the SEC the Schedule 13E-3. Tahoe, Parent, THAIHOT and the Company will use reasonable best efforts to cooperate with each other in connection with the preparation of the foregoing documents. Each of Tahoe, Parent and THAIHOT will use reasonable best efforts to promptly provide such information regarding Purchaser Parties and any other member of the Purchaser Group that the Company may reasonably request for inclusion in the Proxy Statement and Schedule 13E-3. Each of the Company, Tahoe, Parent and THAIHOT shall consider use its reasonable best efforts so that the Proxy Statement and the Schedule 13E-3 comply in good faith all material respects with the requirements of the Exchange Act and incorporate all comments reasonably proposed the rules and regulations promulgated thereunder. Each of the Company, Tahoe, Parent and THAIHOT will use its reasonable best efforts to have the Proxy Statement and the Schedule 13E-3, cleared by Parent, Merger Sub and their counsel with respect thereto. As the SEC as promptly as reasonably practicable after the execution of this Agreement, the Company shall set, in consultation with Parent, a record date for the Company Meeting (which shall be called in accordance with Section 5.4(b)) and commence a broker search pursuant to Section 14a-13 of the Exchange Act in respect thereofsuch filing. The Company shall will use all commercially its reasonable best efforts to respond as promptly as practicable to comments by the SEC staff in respect of the Proxy Statement, and to cause the definitive Proxy Statement to be mailed, as promptly as practicable (and in any event within five (5) Business Days) after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, mailed to the Company’s stockholders as promptly as reasonably practicable within three (3) Business Days after the later of (i) the record date for the Company Meeting Proxy Statement is cleared by the SEC or (as established ii) the date upon which Parent and THAIHOT shall have (A) deposited or caused to be deposited the aggregate Merger Consideration to be paid pursuant to Section 3.2 in the Special Purpose Account in accordance with Section 6.15 and (B) delivered or caused to be delivered to the preceding sentence)Company and the Independent Committee evidence reasonably satisfactory to the Independent Committee that the aggregate Merger Consideration to be paid pursuant to Section 3.2 has been deposited in the Special Purpose Account, together with a certificate, signed by a director of each of Tahoe, Parent and THAIHOT, certifying that the Purchaser Parties have complied with their respective obligations under clause (b) and (c) of Section 6.15 and that the funds deposited in the Special Purpose Account have not been (and will not be prior to the Closing of the Merger or the termination of this Agreement) withdrawn, removed, transferred or made subject to any Lien or other restriction on transfer. The Company shall provide will as promptly as reasonably practicable notify Parent and its counsel with copies of any written comments, and shall provide them a summary the receipt of any oral comments, that the Company or its counsel receive written comments from the SEC or its staff with respect relating to the Proxy Statement as promptly as practicable after receipt of such comments, Statement. The Company will reasonably cooperate and any written or oral responses thereto. provide Parent and its counsel shall be given with a reasonable opportunity to review any such responses and comment on the draft of the Proxy Statement (including each amendment or supplement thereto), and Tahoe, Parent, THAIHOT and the Company shall consider will cooperate and provide each other with a reasonable opportunity to review and comment in good faith on the draft Schedule 13E-3 (including each amendment or supplement thereto) and incorporate all responses to requests for additional information by and replies to comments reasonably proposed by Parentof the SEC, Merger Sub prior to filing such with or sending such to the SEC, and their counsel Tahoe, Parent , THAIHOT and the Company will provide each other with copies of all such filings made and correspondence with the SEC with respect thereto. Parent and Merger Sub shall furnish all information that is customarily included in a proxy statement prepared in connection with transactions of Notwithstanding the type contemplated by this Agreement concerning themselves and their affiliates as promptly as practicable after the date hereof.
(b) Subject to the other provisions of this Agreementforegoing, the Company shall (i) take all action necessary assumes no responsibility with respect to information supplied in accordance with the DGCL, the Company Charter, and the Company Bylaws to duly call, give notice of, convene and hold a meeting writing by or on behalf of its stockholders as promptly as reasonably practicable following (and shall use reasonable best efforts to hold such meeting within thirty (30) Business Days after) the mailing of the Proxy Statement any Purchaser Party for the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”), and (ii) subject to a Change of Board Recommendation in accordance with Section 5.3, shall include the Company Board Recommendation inclusion or incorporation by reference in the Proxy Statement and use all commercially reasonable efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and the Transactions contemplated hereby (including by postponing or adjourning the Company Meeting to allow additional solicitation of proxies in order to obtain the Company Stockholder Approval if necessary)Statement. The Company may, if it receives an unsolicited Acquisition Proposal or if the Company Board otherwise determines in good faith after consultation with outside counsel that the Company’s stockholders should be provided with additional information, delay the mailing of the Proxy Statement or the holding of the Company Meeting, in each case for such reasonable period as would provide a reasonable opportunity for the Company Board to consider such Acquisition Proposal or such additional information and to determine the effect, if any, on the Company Board Recommendation. The Company may also postpone or adjourn the Company Meeting from time to time (i) with the consent of Parent, (ii) if a quorum has not been established, (iii) to the extent necessary to file and mail any supplemental or amended disclosure which the Company Board has determined in good faith is necessary and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Meeting, (iv) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (v) if required by Law.
(c) If, If at any time prior to the Company Meeting, any information relating to the Company or Parent, Merger Sub, the Guarantor, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is should be discovered by the Company or Parent that any party which should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13E-3 so that such document the Proxy Statement or the Schedule 13E-3 would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are were made, not misleading, the party that which discovers such information shall as will promptly as practicable notify the other party. Following such notification, the Company shall prepare and file with the SEC an appropriate amendment or supplement to the Proxy Statement describing such information as promptly as reasonably practicable and shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto, parties and, to the extent required by applicable Law or the SEC or its staffLaw, the Company shall disseminate such an appropriate amendment or supplement describing such information shall be promptly filed by the appropriate party with the SEC and disseminated by the Company to the stockholders of the Company.
(b) Subject to the other provisions of this Agreement, the Company shall (i) use reasonable efforts to take all action required under the DGCL and its Organizational Documents to duly call, give notice of, convene and hold a meeting of its stockholders promptly following the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval and the Majority of the Minority Approval (the “Company Meeting”), with the record date and meeting date of the Company Meeting to be mutually agreed by the Company and Parent, and (ii) subject to a Change in Recommendation in accordance with Section 6.3, use all reasonable efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and approval of the Contemplated Transactions. Notwithstanding anything to the contrary contained in this Agreement, the Company may, and at the direction of Parent the Company will, adjourn or postpone the Company Meeting, if and to the extent any Independent Committee or Parent, as the case may be, determines in good faith (i) such adjournment or postponement is necessary to ensure that any supplement or amendment to the Proxy Statement that is required by applicable Law is timely provided to the Company’s stockholders, or (ii) additional time is required to solicit proxies in favor of the adoption of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Alliance HealthCare Services, Inc)
SEC Filings; Other Actions. (a) As promptly as reasonably practicable (and in any event within fifteen (15) Business Days) after the execution of this Agreement, (i) the Company shall prepare and file the Proxy Statement with the SEC, which shall, subject to a Change of Board Recommendation having been effected in accordance with Section 5.3, include the Company Board Recommendation. ParentRecommendation and (ii) Parent shall prepare and file with the SEC the Form S-4, Merger Sub and their counsel shall be given a reasonable opportunity to review in which the Proxy Statement before it is filed will be included as a prospectus, in connection with the SEC, registration under the Securities Act of the shares of Parent Common Stock to be issued in the Merger. Each of Parent and the Company shall consider use its reasonable best efforts to cause the Form S-4 to be declared effective as promptly as practicable after such filing (including by responding to comments of the SEC) and, prior to the effective date of the Form S-4, each of Parent and the Company shall take all action reasonably required to be taken by it under any applicable securities Laws in good faith connection with the issuance of Parent Common Stock. Each of Parent and incorporate the Company shall furnish all comments information as may be reasonably proposed requested by Parentthe other party in connection with any such action and the preparation, Merger Sub filing and their counsel with respect theretodistribution of the Form S-4 and the Proxy Statement. As promptly as reasonably practicable after the execution of this AgreementForm S-4 shall have become effective, the Company shall set, in consultation with Parent, a record date for the Company Meeting (which shall be called in accordance with Section 5.4(b)) and commence a broker search pursuant to Section 14a-13 of the Exchange Act in respect thereof. The Company shall use all commercially reasonable efforts to respond as promptly as practicable to comments by the SEC staff in respect of the Proxy Statement, and to cause the definitive Proxy Statement to be mailed, as promptly as practicable (and in any event within five (5) Business Days) after confirmation from the SEC that it will not review, or that it has completed mailed to its review of, the Proxy Statement, to the Company’s stockholders as of the record date established for the Company Meeting (as established Meeting. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no filing of, or amendment or supplement to, the Proxy Statement will be made by the Company, in accordance each case without providing the other party with a reasonable opportunity to review and comment thereon, and each of Parent and the Company shall give reasonable and good faith consideration to any comments made by other party or its counsel. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to either the Form S-4 or the Proxy Statement, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the preceding sentence)SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. The Each party shall notify the other party promptly of the time when the Form S-4 has become effective, and of the issuance of any stop order or suspension of the qualification of the shares of Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, and each of Parent and the Company shall provide use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Parent and its the Company shall also take any other action required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state securities or “blue sky” Laws and the rules and regulations thereunder, the DGCL, the rules of NASDAQ in connection with the filing and distribution of the Proxy Statement and the rules of NYSE in connection with the filing and distribution of the Form S-4, and the solicitation of proxies from the Company’s stockholders thereunder. In addition, each party agrees to provide the other party and their respective counsel with copies of any written comments, and shall provide them a summary inform the other party of any oral comments, that the Company such party or its counsel may receive from time to time from the SEC or its staff with respect to the Form S-4 or the Proxy Statement as promptly as practicable after receipt of such comments, and any written or oral responses thereto. Parent Each party and its their respective counsel shall be given a reasonable opportunity to review and comment on any such written responses and the Company each party shall consider in give reasonable and good faith and incorporate all consideration to any comments reasonably proposed made by Parent, Merger Sub and their counsel with respect thereto. Parent and Merger Sub shall furnish all information that is customarily included in a proxy statement prepared in connection with transactions of the type contemplated by this Agreement concerning themselves and their affiliates as promptly as practicable after the date hereofother party or its counsel.
(b) Subject to the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with the DGCL, the Company Charter, and the Company Bylaws to duly call, give notice of, and, as soon as practicable following the effectiveness of the Form S-4, convene and hold a meeting of its stockholders as promptly as reasonably practicable following (and shall use reasonable best efforts to hold such meeting within thirty (30) Business Days after) the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”), with the record date and meeting date of the Company Meeting to be selected after reasonable consultation with Parent, and (ii) subject to a Change of Board Recommendation having been effected in accordance with Section 5.3, shall include the Company Board Recommendation in the Proxy Statement and use all commercially its reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and the Transactions transactions contemplated hereby (including by postponing or adjourning the Company Meeting Meeting, after consultation with Parent, to allow additional solicitation of proxies in order to obtain the Company Stockholder Approval if necessary). The Company may, if it receives an unsolicited Acquisition Proposal or if the Company Board otherwise determines in good faith after consultation with outside counsel that the Company’s stockholders should be provided with additional information, delay the mailing of the Proxy Statement or the holding of the Company Meeting, in each case for such reasonable period as would provide a reasonable opportunity for the Company Board to consider such Acquisition Proposal or such additional information and to determine the effect, if any, on the Company Board Recommendation. The Company may also postpone or adjourn the Company Meeting from time to time (i) with the consent of Parent, (ii) if a quorum has not been established, (iii) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the extent necessary Company Stockholder Approval, (iv) after consultation with Parent, to file allow reasonable additional time for the filing and mail mailing of any supplemental or amended disclosure which that the Company Board has determined in good faith after consultation with outside legal counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Meeting, (iv) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (v) if required by Law.
(c) If, at any time prior to the Company Meeting, any information relating to the Company or Parent, Merger Sub, the Guarantor, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall as promptly as practicable notify the other party. Following such notification, the Company shall prepare and file with the SEC an appropriate amendment or supplement to the Proxy Statement describing such information as promptly as reasonably practicable and shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto, and, to the extent required by applicable Law or the SEC or its staff, the Company shall disseminate such amendment or supplement to the stockholders of the Company.
Appears in 1 contract
Samples: Merger Agreement (Genvec Inc)
SEC Filings; Other Actions. (a) As promptly as reasonably practicable (and in any event within fifteen (15) Business Days) after following the execution date of this Agreement, the Company shall will prepare and file the Proxy Statement with the SEC, which shall, subject to Section 5.3, include the Company Board Recommendation. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC, and the Company shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto. As promptly as reasonably practicable after the execution of this Agreement, the Company shall set, in consultation with Parent, a record date for the Company Meeting (which shall be called in accordance with Section 5.4(b)) and commence a broker search pursuant to Section 14a-13 of the Exchange Act in respect thereof. The Company shall use all commercially reasonable efforts to respond as promptly as practicable to comments by the SEC staff in respect of the Proxy Statement, and the Company and Parent will prepare the Schedule 13E-3. Parent and the Company will cooperate with each other in connection with the preparation of the foregoing documents. The Company will use its reasonable best efforts to have the Proxy Statement, and Parent and the Company will use their reasonable best efforts to have the Schedule 13E-3, cleared by the SEC as promptly as practicable after such filing. The Company will use its reasonable best efforts to cause the definitive Proxy Statement to be mailed, as promptly as practicable (and in any event within five (5) Business Days) after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, mailed to the Company’s stockholders as promptly as practicable after the later of (i) the record date for the Company Meeting Proxy Statement is cleared by the SEC or (as established in accordance with ii) the preceding sentence)date the Board receives a favorable Solvency Opinion from the Valuation Firm. The Company shall provide Parent and its counsel with copies of any written comments, and shall provide them a summary of any oral comments, that the Company or its counsel receive from the SEC or its staff with respect to the Proxy Statement will as promptly as practicable after notify Parent of the receipt of such comments, any oral or written comments from the SEC relating to the Proxy Statement. The Company will cooperate and any written or oral responses thereto. provide Parent and its counsel shall be given with a reasonable opportunity to review any such responses and comment on the draft of the Proxy Statement (including each amendment or supplement thereto), and Parent and the Company shall consider will cooperate and provide each other with a reasonable opportunity to review and comment in good faith on the draft Schedule 13E-3 (including each amendment or supplement thereto) and incorporate all responses to requests for additional information by and replies to comments reasonably proposed by Parentof the SEC, Merger Sub prior to filing such with or sending such to the SEC, and their counsel Parent and the Company will provide each other with copies of all such filings made and correspondence with the SEC with respect thereto. Notwithstanding the foregoing, the Company assumes no responsibility with respect to information supplied in writing by or on behalf of Parent and Merger or Sub shall furnish all for inclusion or incorporation by reference in the Proxy Statement. If at any time prior to the Company Meeting, any information should be discovered by any party which should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13E-3 so that is customarily included the Proxy Statement or the Schedule 13E-3 would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in a proxy statement prepared in connection with transactions the light of the type contemplated circumstances under which they were made, not misleading, the party which discovers such information will promptly notify the other parties and, to the extent required by this Agreement concerning themselves applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the appropriate party with the SEC and their affiliates as promptly as practicable after disseminated by the date hereofCompany to the stockholders of the Company.
(b) Subject to the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with required under the DGCL, the Company Charter, DGCL and the Company Bylaws its Organizational Documents to duly call, give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable following (and shall use reasonable best efforts to hold such meeting within thirty (30) Business Days after) the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval and the Majority of the Minority Approval (the “Company Meeting”), with the record date and meeting date of the Company Meeting to be mutually agreed by the Company and Parent, and (ii) subject to a Change of Board in Recommendation in accordance with Section 5.36.3, shall include the Company Board Recommendation in the Proxy Statement and use all commercially reasonable efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and approval of the Transactions contemplated hereby Contemplated Transactions. Within fifteen (including by postponing or adjourning 15) Business Days after the date of this Agreement (and thereafter, upon the reasonable request of Parent made not more than one time every two (2) weeks), the Company shall conduct a “broker search” in accordance with Rule 14a-13 of the Exchange Act for a record date for the Company Meeting that is twenty (20) Business Days after the date of such “broker search”. Notwithstanding anything to allow additional solicitation of proxies the contrary contained in order to obtain this Agreement, the Company Stockholder Approval if necessary). The Company may, if it receives an unsolicited Acquisition Proposal or if and at the direction of Parent the Company Board otherwise will, adjourn or postpone the Company Meeting if and to the extent any Independent Committee or Parent, as the case may be, determines in good faith after consultation with outside counsel that the Company’s stockholders should be provided with additional information, delay the mailing of the Proxy Statement or the holding of the Company Meeting, in each case for such reasonable period as would provide a reasonable opportunity for the Company Board to consider such Acquisition Proposal or such additional information and to determine the effect, if any, on the Company Board Recommendation. The Company may also postpone or adjourn the Company Meeting from time to time (i) with the consent of Parent, (ii) if a quorum has not been established, (iii) to the extent such adjournment or postponement is necessary to file and mail ensure that any supplemental supplement or amended disclosure which the Company Board has determined in good faith is necessary and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Meeting, (iv) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (v) if required by Law.
(c) If, at any time prior to the Company Meeting, any information relating to the Company or Parent, Merger Sub, the Guarantor, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall as promptly as practicable notify the other party. Following such notification, the Company shall prepare and file with the SEC an appropriate amendment or supplement to the Proxy Statement describing such information as promptly as reasonably practicable and shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto, and, to the extent is required by applicable Law or the SEC or its staff, the Company shall disseminate such amendment or supplement is timely provided to the stockholders Company’s stockholders, or (ii) additional time is required to solicit proxies in favor of the Companyadoption of this Agreement.
Appears in 1 contract
SEC Filings; Other Actions. (a) As promptly as reasonably practicable (and in any event within fifteen (15) Business Days) after following the execution date of this Agreement, the Company shall will prepare and file the Proxy Statement with the SEC, which shall, subject cause to Section 5.3, include the Company Board Recommendation. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC, with the assistance of the Purchaser Parties, the Proxy Statement, and the Company and the Purchaser Parties will prepare and cause to be filed with the SEC the Schedule 13E-3. The Purchaser Parties and the Company will use their respective reasonable best efforts to cooperate with each other in connection with the preparation of the foregoing documents. Each of the Purchaser Parties will use its reasonable best efforts to promptly provide such information regarding Purchaser Parties and any other member of the Purchaser Group that the Company may reasonably request for inclusion in the Proxy Statement and Schedule 13E-3. Each of the Company and the Purchaser Parties shall consider use its reasonable best efforts so that the Proxy Statement and the Schedule 13E-3 comply in good faith all material respects with the requirements of the Exchange Act and incorporate all comments the rules and regulations promulgated thereunder. Each of the Company and the Purchaser Parties will use its reasonable best efforts to have the Proxy Statement and the Schedule 13E-3 cleared by the SEC as promptly as reasonably proposed by Parent, Merger Sub and their counsel with respect theretopracticable after such filing. As The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s stockholders as promptly as reasonably practicable after the execution of this Agreement, date the Company shall set, in consultation with Parent, a record date for Proxy Statement is cleared by the Company Meeting (which shall be called in accordance with Section 5.4(b)) and commence a broker search pursuant to Section 14a-13 of the Exchange Act in respect thereofSEC. The Company shall use all commercially reasonable efforts to respond will as promptly as reasonably practicable to notify Parent of the receipt of any oral or written comments by from the SEC staff in respect of relating to the Proxy Statement, and to cause the definitive Proxy Statement to be mailed, as promptly as practicable (and in any event within five (5) Business Days) after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, to the Company’s stockholders as of the record date for the Company Meeting (as established in accordance with the preceding sentence). The Company shall will reasonably cooperate and provide Parent and its counsel with copies of any written comments, and shall provide them a summary of any oral comments, that the Company or its counsel receive from the SEC or its staff with respect to the Proxy Statement as promptly as practicable after receipt of such comments, and any written or oral responses thereto. Parent and its counsel shall be given a reasonable opportunity to review any such responses and comment on the draft of the Proxy Statement (including each amendment or supplement thereto), and the Purchaser Parties and the Company shall consider will cooperate and provide each other with a reasonable opportunity to review and comment in good faith on the draft Schedule 13E-3 (including each amendment or supplement thereto) and incorporate all responses to requests for additional information by and replies to comments reasonably proposed by Parentof the SEC, Merger Sub prior to filing such with or sending such to the SEC, and their counsel the Purchaser Parties and the Company will provide each other with copies of all such filings made and correspondence with the SEC with respect thereto. Parent and Merger Sub shall furnish all information that is customarily included in a proxy statement prepared in connection with transactions of Notwithstanding the type contemplated by this Agreement concerning themselves and their affiliates as promptly as practicable after the date hereof.
(b) Subject to the other provisions of this Agreementforegoing, the Company shall (i) take all action necessary in accordance assumes no responsibility with the DGCL, the Company Charter, and the Company Bylaws respect to duly call, give notice of, convene and hold a meeting written information supplied by or on behalf of its stockholders as promptly as reasonably practicable following (and shall use reasonable best efforts to hold such meeting within thirty (30) Business Days after) the mailing of the Proxy Statement any Purchaser Party for the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”), and (ii) subject to a Change of Board Recommendation in accordance with Section 5.3, shall include the Company Board Recommendation inclusion or incorporation by reference in the Proxy Statement and use all commercially reasonable efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and the Transactions contemplated hereby (including by postponing or adjourning the Company Meeting to allow additional solicitation of proxies in order to obtain the Company Stockholder Approval if necessary)Statement. The Company may, if it receives an unsolicited Acquisition Proposal or if the Company Board otherwise determines in good faith after consultation with outside counsel that the Company’s stockholders should be provided with additional information, delay the mailing of the Proxy Statement or the holding of the Company Meeting, in each case for such reasonable period as would provide a reasonable opportunity for the Company Board to consider such Acquisition Proposal or such additional information and to determine the effect, if any, on the Company Board Recommendation. The Company may also postpone or adjourn the Company Meeting from time to time (i) with the consent of Parent, (ii) if a quorum has not been established, (iii) to the extent necessary to file and mail any supplemental or amended disclosure which the Company Board has determined in good faith is necessary and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Meeting, (iv) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (v) if required by Law.
(c) If, If at any time prior to the Company Meeting, any information relating to the Company or Parent, Merger Sub, the Guarantor, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is should be discovered by the Company or Parent that any Party which should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13E-3 so that such document the Proxy Statement or the Schedule 13E-3 would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are were made, not misleading, the party that Party which discovers such information shall as will promptly as practicable notify the other party. Following such notification, the Company shall prepare and file with the SEC an appropriate amendment or supplement to the Proxy Statement describing such information as promptly as reasonably practicable and shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto, Party and, to the extent required by applicable Law or the SEC or its staffLaw, the Company shall disseminate such an appropriate amendment or supplement describing such information shall be promptly filed by the appropriate Party with the SEC and, to the extent required by applicable Law, disseminated by the Company to the stockholders of the Company.
(b) The Company shall (i) use reasonable efforts to take all action required under the DGCL, its Organizational Documents and the rules of NASDAQ to duly call, give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable following the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval and the Majority of the Minority Approval (the “Company Meeting”), and (ii) subject to a Change in Recommendation in accordance with Section 6.3, use all reasonable efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and approval of the Merger. Notwithstanding the foregoing, the Company shall not be required to convene and hold the Company Meeting at any time prior to the 20th Business Day following the mailing of the Proxy Statement to the Company’s Stockholders. The Company may not adjourn or postpone the Company Meeting without the prior written consent of Parent, except (A) after consultation with Parent, for not more than two (2) periods not to exceed ten (10) Business Days each if on the date on which the Company Meeting is then-scheduled, the Company has not received proxies representing a sufficient number of shares of Common Stock to obtain the Company Stockholder Approval or Majority of the Minority Approval, (B) after consultation with Parent, to the extent necessary under applicable Law to ensure that any required supplement or amendment to the Proxy Statement is provided to the stockholders of the Company within a reasonable amount of time in advance of the Company Meeting, (C) in order to obtain a quorum of stockholders, if as of the time for which the Company Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Meeting, or (D) the Company is required to postpone or adjourn the Company Meeting by applicable Law or request from the SEC or its staff.
Appears in 1 contract
Samples: Merger Agreement (Telenav, Inc.)
SEC Filings; Other Actions. (a) As promptly as reasonably practicable (and in any no event within fifteen (15) later than 20 Business Days) after the execution of this Agreement, the Company shall prepare and file a preliminary version of the Proxy Statement with the SEC, which shall, subject to Section 5.3, include the Company Board Recommendation. ParentParent and Merger Sub, Merger Sub and their counsel counsel, shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC, and the Company shall consider in good faith give due consideration to any reasonable additions, deletions or changes suggested thereto by Parent and incorporate all comments reasonably proposed by Parent, Merger Sub and or their counsel with respect thereto. As promptly as reasonably practicable after the execution of this Agreement, the Company shall set, in consultation with Parent, a record date for the Company Meeting (which shall be called in accordance with Section 5.4(b)) and commence a broker search pursuant to Section 14a-13 of the Exchange Act in respect thereofcounsel. The Company shall use all commercially reasonable best efforts to respond as promptly as practicable to comments by the SEC staff in respect of the Proxy Statement, Statement and to cause have the definitive Proxy Statement to be mailed, cleared by the SEC and its staff under the Exchange Act as promptly as practicable (and in any event within five (5) Business Days) after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, to the Company’s stockholders as of the record date for the Company Meeting (as established in accordance with the preceding sentence)such initial filing. The Company shall provide Parent and its counsel with copies of any written comments, and shall provide them a summary of any oral comments, that the Company or its counsel receive from the SEC or its staff with respect to the Proxy Statement Statement, in each case as promptly as practicable (and in any event within 48 hours) after receipt of such comments, and any written or oral responses thereto. Parent and its counsel shall be given a reasonable opportunity to review any such responses and the Company shall consider in good faith give due consideration to the reasonable additions, deletions or changes suggested thereto by Parent and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect theretoits counsel. Parent and Merger Sub shall furnish all information that is customarily included in a proxy statement prepared in connection with transactions of the type contemplated by this Agreement concerning themselves and their affiliates Affiliates as promptly as practicable after the date hereof.
(b) The Company shall cause the definitive Proxy Statement to be filed with the SEC and mailed to the Company’s stockholders as promptly as reasonably practicable after the preliminary Proxy Statement has been filed with the SEC pursuant to Section 5.4(a) and cleared by the SEC and its staff under the Exchange Act. For purposes of the prior sentence, the Proxy Statement shall be deemed to be “cleared by the SEC” on (i) the date that is 10 calendar days (calculated in accordance with Rule 14a-6(a) promulgated under the Exchange Act) after filing the Proxy Statement in preliminary form if, prior to such date, the SEC does not provide comments or affirmatively notify the Company that the SEC will review such preliminary Proxy Statement or (ii) in the event that the SEC affirmatively notifies the Company during such 10-calendar day period that it does not intend to review the Proxy Statement or that the SEC has completed its review and has no further comments on the Proxy Statement.
(c) Subject to the other provisions of this Agreement, as promptly as reasonably practical after the filing of the definitive Proxy Statement with the SEC, the Company shall (i) take all action necessary in accordance with the DGCL, the Company Charter, and the Company Bylaws to duly call, give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable (but in no event later than 35 days following (and shall use reasonable best efforts to hold such meeting within thirty (30) Business Days after) the mailing of date on which the definitive Proxy Statement is first mailed to the Company’s stockholders) for the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”), and (ii) subject to a Change of Board Recommendation in accordance with Section 5.3, shall include the Company Board Recommendation in the Proxy Statement and use all commercially reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement Agreement. The Company shall consult with Parent regarding the record date of the Company Stockholders’ Meeting, prior to setting such date. Notwithstanding anything to the contrary in this Agreement, the Company may adjourn, recess, or postpone, and at the Transactions contemplated hereby request of Parent (including by postponing on no more than two occasions) it shall adjourn, recess or adjourning postpone, the Company Meeting for a reasonable period to allow solicit additional solicitation proxies, if the Company or Parent, respectively, reasonably believes there will be insufficient Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of proxies in order the Company Meeting or to obtain the Company Stockholder Approval if necessary). The Company may(provided, if it receives an unsolicited Acquisition Proposal or if that, unless agreed in writing by the Company Board otherwise determines and Parent, all such adjournments, recesses or postponements shall be for periods of no more than five (5) Business Days each (not to exceed 10 Business Days in good faith after consultation with outside counsel that the Company’s stockholders should be provided with additional information, delay the mailing of the Proxy Statement or the holding of the Company Meeting, in each case for such reasonable period as would provide a reasonable opportunity for the Company Board to consider such Acquisition Proposal or such additional information and to determine the effect, if any, on the Company Board Recommendationaggregate)). The Company may also postpone or adjourn the Company Meeting from time to time (i) with the consent of ParentParent (not to be unreasonably withheld, conditioned or delayed), (ii) if a quorum has not been established, (iii) to allow reasonable additional time for the extent necessary to file filing and mail mailing of any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside legal counsel is necessary or advisable and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Meeting, (iv) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (viii) if required by applicable Law.
(c) If, at any time prior to the Company Meeting, any information relating to the Company or Parent, Merger Sub, the Guarantor, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall as promptly as practicable notify the other party. Following such notification, the The Company shall prepare and file use reasonable best efforts to provide Parent with the SEC an appropriate amendment or supplement to the Proxy Statement describing such information as promptly periodic updates (including voting reports) concerning proxy solicitation results, as reasonably practicable and shall consider in good faith and incorporate all comments reasonably proposed requested by Parent, Merger Sub and their counsel with respect thereto, and, to the extent required by applicable Law or the SEC or its staff, the Company shall disseminate such amendment or supplement to the stockholders of the Company.
Appears in 1 contract
Samples: Merger Agreement (Iteris, Inc.)
SEC Filings; Other Actions. (a) As promptly as reasonably practicable following the date of this Agreement (and and, in any event within fifteen event, no later than thirty (1530) Business Days) Days after the execution date of this Agreement), the Company shall Company, with the assistance of Parent and Merger Sub, will prepare and file the Proxy Statement with the SEC, which shall, subject cause to Section 5.3, include the Company Board Recommendation. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC, the Proxy Statement and the Company shall consider in good faith Schedule 13E-3. Parent and incorporate all comments reasonably proposed by Parent, Merger Sub shall promptly furnish all information as the Company may reasonably request in connection with such actions and their counsel the preparation of the Proxy Statement and the Schedule 13E3. Each of the Company, Parent and Merger Sub shall use its reasonable best efforts so that the Proxy Statement and the Schedule 13E-3 comply in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. The Company, with the assistance of, and after consultation with, Parent and Merger Sub, shall use its reasonable best efforts to (a) respond, as promptly as reasonably practicable, to any comments received from the staff of the SEC with respect thereto. As to such filings of the Proxy Statement and the Schedule 13E-3, (b) prepare and file, as promptly as reasonably practicable, any amendments or supplements necessary to be filed in response to any such comments or as required by applicable Law, (c) have cleared by the staff of the SEC the Proxy Statement and the Schedule 13E-3 and (d) to the extent required by applicable Law, as promptly as reasonably practicable, prepare, file and distribute to the stockholders any supplement or amendment to the Proxy Statement or the Schedule 13E-3 if any event shall occur as promptly as reasonably practicable after the execution of this Agreement, date the Company shall set, in consultation with Parent, a record date for Proxy Statement is cleared by the Company Meeting (which shall be called in accordance with Section 5.4(b)) and commence a broker search pursuant to Section 14a-13 of the Exchange Act in respect thereofSEC. The Company shall use all commercially reasonable efforts to respond as promptly as reasonably practicable to notify Parent of the receipt of any oral or written comments by from the SEC staff in respect of relating to the Proxy Statement, and to cause the definitive Proxy Statement to be mailed, as promptly as practicable (and in any event within five (5) Business Days) after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, to the Company’s stockholders as of the record date for the Company Meeting (as established in accordance with the preceding sentence). The Company shall will reasonably cooperate and provide Parent and its counsel with copies of any written comments, and shall provide them a summary of any oral comments, that the Company or its counsel receive from the SEC or its staff with respect to the Proxy Statement as promptly as practicable after receipt of such comments, and any written or oral responses thereto. Parent and its counsel shall be given a reasonable opportunity to review any such responses and comment on the Company draft of the Proxy Statement (including each amendment or supplement thereto), and shall consider provide Parent with a reasonable opportunity to review and comment in good faith on the draft Schedule 13E-3 (including each amendment or supplement thereto) and incorporate all responses to requests for additional information by and replies to comments reasonably proposed of the SEC, prior to filing such with or sending such to the SEC, and shall provide Parent with copies of all such filings made and correspondence with the SEC with respect thereto; provided, however, that nothing in this Section 7.1 shall limit or preclude the Board or the Special Committee from effecting a Change in Company Recommendation; provided, further, that no representation, warranty, covenant or agreement is made by the Company with respect to information supplied by Parent, Merger Sub Sub, the Rollover Stockholders or their respective Affiliates or Representatives for inclusion or incorporation by reference in the Proxy Statement and their counsel with respect thereto. Parent and Merger Sub shall furnish all information that is customarily included in a proxy statement prepared in connection with transactions of the type contemplated by this Agreement concerning themselves and their affiliates as promptly as practicable after the date hereofSchedule 13E-3.
(b) Subject Notwithstanding anything herein to the other provisions contrary, and subject to compliance with the terms of this AgreementSection 6.2(f), in connection with any disclosure regarding a Change in Company Recommendation, the Company shall (i) take all action necessary in accordance not be required to provide Parent or Merger Sub with the DGCLopportunity to review or comment on (or include comments proposed by Parent or Merger Sub in) the Schedule 13E-3 or the Proxy Statement, or any amendment or supplement thereto, or any comments thereon or another filing by the Company Charter, and the Company Bylaws to duly call, give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable following (and shall use reasonable best efforts to hold such meeting within thirty (30) Business Days after) the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (the “Company Meeting”), and (ii) subject to a Change of Board Recommendation in accordance with Section 5.3, shall include the Company Board Recommendation in the Proxy Statement and use all commercially reasonable efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and the Transactions contemplated hereby (including by postponing or adjourning the Company Meeting to allow additional solicitation of proxies in order to obtain the Company Stockholder Approval if necessary). The Company may, if it receives an unsolicited Acquisition Proposal or if the Company Board otherwise determines in good faith after consultation with outside counsel that the Company’s stockholders should be provided with additional information, delay the mailing of the Proxy Statement or the holding of the Company Meeting, in each case for such reasonable period as would provide a reasonable opportunity for the Company Board to consider such Acquisition Proposal or such additional information and to determine the effect, if any, on the Company Board Recommendation. The Company may also postpone or adjourn the Company Meeting from time to time (i) with the consent of ParentSEC, (ii) if a quorum has not been established, (iii) with respect to the extent necessary to file and mail any supplemental or amended disclosure which the Company Board has determined in good faith is necessary and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Meeting, (iv) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (v) if required by Law.
(c) If, disclosure. If at any time prior to the Company Stockholders’ Meeting, any information relating to the Company or Parent, Merger Sub, the Guarantor, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is should be discovered by the Company or Parent that any party which should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13E-3 so that such document the Proxy Statement or the Schedule 13E-3 would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are were made, not misleading, the party that which discovers such information shall as will promptly as practicable notify the other party. Following such notification, the Company shall prepare and file with the SEC an appropriate amendment or supplement to the Proxy Statement describing such information as promptly as reasonably practicable and shall consider in good faith and incorporate all comments reasonably proposed by Parent, Merger Sub and their counsel with respect thereto, parties and, to the extent required by applicable Law or the SEC or its staffLaw, the Company shall disseminate such an appropriate amendment or supplement describing such information shall be promptly filed by the appropriate party with the SEC and, to the extent required by applicable Law, disseminated by the Company to the stockholders of the Company.
Appears in 1 contract
