Shareholders Meeting. (a) As soon as practicable after the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmation, the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting. (b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation. (c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date. (d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 7 contracts
Samples: Agreement and Plan of Merger (Ocean Imagination L.P.), Agreement and Plan of Merger (Ctrip Investment Holding Ltd.), Agreement and Plan of Merger (Zhang Ray Ruiping)
Shareholders Meeting. (a) As soon Company shall call a meeting of its Shareholders to be held as promptly as practicable after upon the SEC confirms that it purchase of Shares by Purchaser pursuant to the Offer (provided the Minimum Condition has no further comments on the Schedule 13E-3 but in any event no later than two (2been satisfied) days after such confirmation, the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”"OFFER COMPLETION") and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger Agreement and the TransactionsMerger (the "SHAREHOLDERS' MEETING").
(b) Except as provided in Section 6.5(c), including Company (i) as promptly as reasonably practicable following the MergerOffer Completion, will prepare and file with the SEC a proxy statement, together with a form of proxy, with respect to the Shareholders' Meeting (such proxy statement, together with any amendments thereof or supplements thereto, being herein called the "PROXY STATEMENT"), (ii) will use its reasonable best efforts to have the Proxy Statement cleared by the SEC as soon as reasonably practicable, if such clearance is required, and (iii) instruct or otherwise as soon as reasonably practicable thereafter, will cause the Depository copies of such Proxy Statement and form of proxy to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining mailed to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs Shareholders in accordance with the instructions provisions of such corresponding Record ADS Holdersthe MBCA. Subject Prior to Section 6.02(b)the filing of the Proxy Statement and form of proxy with the SEC, without Company will provide reasonable opportunity for Parent to review and comment upon the consent contents of Parent, the authorization Proxy Statement and approval form of this Agreement, proxy. The Proxy Statement and form of proxy will comply as to form in all material respects with the Plan applicable requirements of Merger the Exchange Act and the Transactions, including rules and regulations of the Merger, are SEC. The Proxy Statement will include the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders recommendation of the Company at Board that the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and Shareholders approve this Agreement, unless the Plan Company Board, in the exercise of Merger and the Transactionsits fiduciary duties, including the Merger, and shall include determine that such recommendation in should not be made. After the delivery to the Shareholders of copies of the Proxy Statement and (ii) the form of proxy, Company shall will use its reasonable best efforts to solicit from its shareholders proxies in connection with such Shareholders' Meeting in favor of the authorization and approval of this Agreement, unless the Plan Company Board shall determine, in the exercise of Merger its fiduciary duties, that such solicitation should not be made. Parent and Purchaser will vote all shares of Company Common Stock owned or controlled by them in favor of the Transactionsapproval of this Agreement. Each of Parent, including Purchaser and Company will use its reasonable best efforts, after consultation with the Mergerother parties hereto, to respond promptly to all comments and shall take all other action necessary or advisable to secure requests of the Requisite Company Vote. Notwithstanding anything SEC with respect to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant Proxy Statement and to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication file all required supplements and amendments to the Company or any other person of any Competing Transaction or by any Change in Proxy Statement with the Company RecommendationSEC and cause them to be mailed to the Shareholders at the earliest practicable time.
(c) Notwithstanding Section 6.02(b)6.5(a) or (b) hereof, after consultation in good faith with the event that Parent, the Company may recommend the adjournment Purchaser or any other Subsidiary of Parent acquires, directly or indirectly, at least 90% of the Shareholders’ Meeting to its shareholders (i) outstanding Shares pursuant to the extent Offer or otherwise, the parties hereto will take all necessary and appropriate action to ensure that any required supplement or amendment cause the Merger to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned become effective in accordance with Section 302A.621 of the immediately preceding sentence, MBCA without a meeting of the Company shall convene and hold the Shareholders’ Meeting Shareholders as soon as reasonably practicable thereafter, subject after the acceptance for payment and purchase of the Shares by Parent pursuant to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination DateOffer.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 4 contracts
Samples: Merger Agreement (Funco Inc), Merger Agreement (Electronics Boutique Holdings Corp), Merger Agreement (Funco Inc)
Shareholders Meeting. (a) As soon as practicable after Once the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmationOffer is commenced, the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of ParentPrincipal Shareholders shall, unless required to do so by applicable Law; providedin coordination with Bidder, that in the event request that the date Company's Board of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders Directors convene an extraordinary meeting of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company (the "Shareholders Meeting") to be held on the earliest date consistent with applicable notice periods or at such other date as the Shareholders’ Meetingparties may agree, but in no event earlier than nine calendar days prior to the Expiration Date and no later than five business days prior to the Expiration Date. Except as required by Law, the sole purpose of such meeting shall be the deletion of Article 6 bis, 18 bis, 20 bis, 34 bis, 35 bis, 53 and 56 and the modification of Articles 1, 6, 20 and 39 of the Company's Estatutos as set forth in Exhibit C hereto (the "Bylaw Amendments").
(b) No later than thirty (30) days after If Shares representing at least the date of mailing Minimum Condition have been tendered immediately prior to the Proxy StatementShareholders Meeting, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, then:
(i) the Company Board Bidder shall recommend waive those conditions set forth in paragraphs 3, 4, 7 and 8 on Exhibit A; provided, however, that Bidder's obligation to holders waive these conditions shall be conditioned upon Bidder receiving from a representative of each of the Shares Principal Shareholders, reasonably acceptable to the Bidder, a certificate that they authorize and approve this Agreementto such person's knowledge after due inquiry, no event or incident has occurred that would cause a default in one of the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and conditions; and
(ii) Bidder shall waive any possible default of a condition or failure to meet a condition set forth in Exhibit A that may have occurred or be deemed to have occurred, other than those waived pursuant to clause (i) above, as a result of or with respect to any circumstance, event or incident occurring or existing prior to the Company Shareholders Meeting that Bidder knew or should have known at such time; provided, however, that Bidder's obligation to partially waive these conditions shall use its reasonable best efforts be conditioned upon Bidder receiving from a representative of each of the Principal Shareholders, reasonably acceptable to solicit from its shareholders proxies the Bidder, a certificate that to such person's knowledge after due inquiry, no event or incident has occurred that would cause a default in one of the conditions; and then, provided that Bidder shall not have revoked, terminated or amended, other than as permitted by Sections 2.1 and 2.3, the Offer, the Principal Shareholders agree to vote at the Shareholders Meeting, and at any adjournment or continuation thereof, all of the PS Shares and all other Shares for which a proxy has been granted to any of the Principal Shareholders in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company RecommendationBylaw Amendments.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 2 contracts
Samples: Agreement to Tender (Comercial E Inversiones Portfolio Limitada), Agreement to Tender (Ivax Corp /De)
Shareholders Meeting. (a) As soon as practicable after the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmation, the The Company shall (i) establish take all actions in accordance with applicable Law, its constituent documents and the rules of the New York Stock Exchange to duly call, set a record date for determining shareholders for, give notice of, convene and hold a special meeting of the Company entitled to vote at the Shareholders’ Meeting Company’s shareholders (including any adjournment or postponement thereof, the “Record DateSpecial Meeting”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or promptly as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting considering and taking action upon the authorization and approval adoption of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 Company shall not be limited adjourn or otherwise affected by postpone the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Special Meeting without Parent’s consent; provided that without Parent’s consent, the Company may recommend adjourn or postpone the adjournment of the Shareholders’ Special Meeting to its shareholders (i) after consultation with Parent, to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders shareholders of Shares the Company within a reasonable amount of time in advance of the Shareholders’ Meeting, Special Meeting or (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Special Meeting is originally scheduled (as set forth in the Proxy Statement (after giving effect to any prior adjournment), Statement) there are insufficient Shares shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Special Meeting. Notwithstanding any Company Adverse Recommendation Change or Change in Recommendation, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice unless this Agreement shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned have been terminated in accordance with the immediately preceding sentenceits terms, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject (x) submit this Agreement to the immediately preceding sentence; provided, that shareholders of the Company shall as promptly as practicable for the purpose of obtaining the Shareholder Approval at the Special Meeting and (y) not recommend to its submit any Company Takeover Proposal for approval by the shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination DateCompany.
(db) At the Special Meeting or any postponement or adjournment thereof, Parent may request that the Companyshall vote, adjourn the Shareholders’ Meeting for up or cause to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date)be voted, (i) if as all of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person then beneficially owned by it, Merger Sub or by proxy) (A) to constitute a quorum necessary to conduct the business any of the Shareholders’ Meeting or (B) voting its other Subsidiaries and controlled Affiliates in favor of the authorization and approval adoption of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 2 contracts
Samples: Merger Agreement (United Technologies Corp /De/), Merger Agreement (Goodrich Corp)
Shareholders Meeting. (a) As The Company, acting through the Board of Directors, shall, if required by applicable law:
(i) duly call, give notice of, convene and hold a special meeting of its shareholders (the "Shareholders Meeting"), to be held as soon as practicable after Newco shall have purchased Shares pursuant to the SEC confirms Offer, for the purpose of considering and taking action upon this Agreement;
(ii) include in the Proxy Statement the recommendation of the Board of Directors that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmation, the Company shall (i) establish a record date for determining shareholders of the Company entitled vote in favor of the approval of this Agreement and the transactions contemplated hereby unless the Company reasonably determines in good faith, based on the advice of outside legal counsel to vote the Company, that excluding such recommendation is necessary in order for the Board of Directors of the Company to comply with its fiduciary duties under applicable law; and
(iii) use all reasonable efforts (A) to obtain and furnish the information required to be included by it in the Proxy Statement and, after consultation with Parent and Newco, respond promptly to any comments made by the SEC with respect to the Proxy Statement and any preliminary version thereof and cause the Proxy Statement to be mailed to its shareholders at the Shareholders’ Meeting earliest practicable time following the expiration or termination of the Offer and (b) obtain the “Record Date”) necessary approvals by its shareholders of this Agreement and shall the transactions contemplated hereby unless, the Company reasonably determines in good faith, based on the advice of outside legal counsel to the Company, that not change taking any such Record Date or establish a different record date action is necessary in order for the Shareholders’ Meeting without Board of Directors of the prior written consent of Company to comply with its fiduciary duties under applicable law. At such meeting, Parent, unless required to do so Newco and their affiliates will vote all Shares owned by applicable Law; providedthem in favor of approval of this Agreement and the transactions contemplated hereby.
(b) Notwithstanding the foregoing, that in the event that the date Newco shall acquire at least 90 percent of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayedthen outstanding Shares, the Company agrees that unless Parent shall have otherwise approved parties hereto agree, at the request of Newco, subject to Article VIII, to take all necessary and appropriate action to cause the Merger to become effective, in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as accordance with Section 180.1104 of the Record DateBCL, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of after such corresponding Record ADS Holders. Subject to Section 6.02(b)acquisition, without the consent a meeting of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ MeetingCompany.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 2 contracts
Samples: Merger Agreement (Taqu Inc), Merger Agreement (Giddings & Lewis Inc /Wi/)
Shareholders Meeting. The Company will take, in accordance with applicable Law and its articles of incorporation and bylaws, all action necessary to convene a meeting of Shareholders (the “Shareholders Meeting”) as promptly as practicable after the execution of this Agreement, and in any event no later than forty-five (45) days after (a) As soon as practicable the tenth (10th) day after the preliminary Proxy Statement has been filed with the SEC if by such date the SEC has not informed the Company that it intends to review the Proxy Statement or (b) if the SEC has by such date informed the Company that it intends to review the Proxy Statement, the date on which the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmationProxy Statement; provided, that the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Shareholders Meeting may be adjourned, recessed or delayed for a reasonable period (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting provided, that without the prior written consent of Parent, unless required each such adjournment, recess or delay shall be for a period not to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, exceed ten (ii10) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-Kdays), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Shareholders Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentencescheduled, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) believes there are insufficient Shares represented (either in person or by proxy) (A) and voting to obtain the Requisite Company Vote or to constitute a quorum necessary to conduct the business of the Shareholders’ Shareholders Meeting and the Company shall not otherwise postpone, recess or (B) voting in favor of adjourn such meeting except to the authorization and approval extent required by Law. Subject to Section 5.2(e), the Company Board shall use its reasonable best efforts to obtain the Requisite Company Vote. In the event that subsequent to the date of this Agreement, the Plan Company Board makes a Change of Merger and Recommendation, the Transactions, including Company nevertheless shall continue to submit this Agreement to the Merger, to obtain holders of the Requisite Company Vote or (ii) in order to allow reasonable additional time Shares for (A) the filing and mailing of, approval at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders Shareholders Meeting unless this Agreement shall have been terminated in accordance with its terms prior to the Shareholders’ Shareholders Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 2 contracts
Samples: Merger Agreement (Unified Grocers, Inc.), Merger Agreement (Supervalu Inc)
Shareholders Meeting. (a) As The Company, acting through the Company Board, shall, in accordance with applicable law:
(i) duly call, give notice of, convene and hold a special meeting of its shareholders (the "Special Meeting") as soon as practicable after following the execution of this Agreement for the purpose of considering and taking action upon this Agreement;
(ii) prepare and file with the SEC confirms that it has no further a preliminary proxy statement relating to this Agreement, and use its reasonable efforts (A) to obtain and furnish the information required to be included by the SEC in a definitive proxy statement (the "Proxy Statement") and, after consultation with ICS, to respond promptly to any comments on made by the Schedule 13E-3 but in any event no later than two SEC with respect to the preliminary proxy statement and cause the Proxy Statement to be mailed to its shareholders and (2B) days after such confirmation, to obtain the necessary approvals of the Merger and this Agreement by its shareholders; and
(iii) subject to the fiduciary duties of the Company shall (i) establish a record date for determining Board, include in the Proxy Statement the recommendation of the Company Board that shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date favor of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after The Company covenants that the Proxy Statement will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's shareholders, shall not contain any untrue statement of mailing 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, except that no representation is made by the Company with respect to information supplied by ICS in writing for inclusion in the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders Each of the Shares that they authorize and approve this AgreementCompany, on the Plan of Merger and the Transactions, including the Mergerone hand, and shall include such recommendation ICS, on the other hand, agree promptly to correct any information provided by either of them for use in the Proxy Statement if and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent that it shall have become false or misleading, and the Company further agrees to take all steps necessary to ensure that any required supplement or amendment to cause the Proxy Statement is provided as so corrected to be filed with the SEC and to be disseminated to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shallShares, in each case, recommend that as and to the Shareholders’ Meeting be adjourned in accordance with Parent’s requestextent required by applicable federal securities laws.
Appears in 2 contracts
Samples: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Microclock Inc)
Shareholders Meeting. The Company will take, in accordance with applicable Law and its articles of incorporation and by-laws, all action necessary to establish a record date for, duly call and give notice of a meeting of holders of Shares (athe “Shareholders Meeting”) As soon as promptly as practicable after the SEC confirms that it has Form S-4 is declared effective (and in no further comments on the Schedule 13E-3 but in any event no later more than two (2) 45 calendar days after the Form S-4 becomes effective), and as promptly as practicable convene and hold the Shareholders Meeting, to consider and vote upon the approval of this Agreement (and if such confirmation, meeting is an annual meeting of the Company shall (i) establish and not a record date special meeting, such other customary matters as may be appropriate for determining an annual meeting of shareholders of the Company entitled Company), cause such vote to vote at the Shareholders’ Meeting (the “Record Date”) be taken and completed as soon as practicable and shall not change postpone or adjourn such Record Date meeting except to the extent required by Law or establish a different record date for the Shareholders’ Meeting without with the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b7.2(d), without the consent of ParentSection 7.2(e) and Section 7.2(f) hereof, the authorization and approval board of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders directors of the Company at shall recommend such approval, include the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing Company Recommendation in the Proxy Statement/Prospectus, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to obtain and solicit from its shareholders proxies in favor of the authorization and such approval of this Agreement. Notwithstanding the foregoing, if on a date within two (2) business days of the Plan of Merger and date the TransactionsShareholders Meeting is scheduled (the “Original Date”), including (A) the Merger, and shall take all other action necessary or advisable to secure Company has not received proxies representing the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement whether or not a quorum is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited present or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(cB) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent it is necessary to ensure that any required supplement or amendment to the Proxy Statement is timely provided to the holders of Shares within a reasonable amount of time in advance Company’s shareholders, the Company may, or if Parent so requests, shall, postpone or adjourn, or make one or more successive postponements or adjournments of, the Shareholders Meeting as long as the date of the Shareholders’ MeetingShareholders Meeting is not postponed or adjourned more than ten (10) calendar days in connection with any one postponement or adjournment or more than an aggregate of twenty (20) calendar days from the Original Date in reliance on the preceding sentence. The Company shall (i) keep Parent reasonably updated concerning proxy solicitation results on a timely basis (including, if requested by Parent, promptly providing daily voting reports) and (ii) as otherwise required by applicable Lawprovide written notice to Parent on the day preceding the Shareholders Meeting and on the day of, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days but prior to the Termination Date.
(d) Parent may request that the CompanyShareholders Meeting, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if indicating whether as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain such date sufficient proxies representing the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s requesthave been obtained.
Appears in 2 contracts
Samples: Merger Agreement (Harris Corp /De/), Merger Agreement (Exelis Inc.)
Shareholders Meeting. (a) As soon as reasonably practicable after the SEC confirms that it has no further comments on the Schedule 13E-3 and the Shareholder Proxy Statement, but in any event no later than two fifteen (215) days after such confirmation, the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Shareholders Meeting (the “Shareholder Record Date”) and shall not change such Shareholder Record Date or establish a different record date for the Shareholders’ Shareholders Meeting without the prior written consent of ParentHoldCo, unless required to do so by applicable LawLaws; provided, that and in the event that the date of the Shareholders’ Shareholders Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent HoldCo shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirementsrequirement, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not need to establish a new Shareholder Record Date for the Shareholders’ Shareholders Meeting, as so adjourned or delayed, and (ii) mail or cause to be mailed the Shareholder Proxy Statement to the holders of Shares (and concurrently furnish the Shareholder Proxy Statement under Form 6-K), including Shares represented by ADSs, K to the SEC) as of the Shareholder Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b6.5(b), without the prior written consent of ParentHoldCo, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, Transactions are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Shareholders Meeting.
(b) No As soon as practicable but in any event no later than thirty forty (3040) days after the date of mailing the Shareholder Proxy Statement, the Company shall hold the Shareholders’ MeetingShareholders Meeting in accordance with the Company Governing Documents and all applicable Laws. Subject to this Section 6.02 and Section 6.046.3, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Shareholder Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, Transactions and shall to take all other action necessary or advisable to secure the Requisite Company VoteShareholder Approval. Notwithstanding anything to the contrary contained in this AgreementAgreement but subject to Section 6.5(c), unless this Agreement is validly terminated in accordance with Section 8.03(c)Article IX, (x) the Company’s obligations pursuant to this Section 6.02 6.5 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person Person of any Competing Transaction Proposal or Alternative Warrant Proposal, and (y) the Company’s obligations pursuant to this Section 6.5 (other than the second sentence of this Section 6.5(b)) shall not be limited or otherwise affected by any Change in the Company RecommendationAdverse Recommendation Change.
(c) Notwithstanding Section 6.02(b6.5(b), after consultation in good faith with ParentHoldCo, the Company may recommend the adjournment of the Shareholders’ Shareholders Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Shareholder Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Shareholders Meeting, (ii) as otherwise required by applicable Law, Law or (iii) if as of the time for which the Shareholders’ Shareholders Meeting is scheduled as set forth in the Shareholder Proxy Statement (after giving effect to any prior adjournment)Statement, there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ MeetingShareholders Meeting or to vote in favor of the authorization and approval of this Agreement, or (iv) if an Intervening Event has occurred the Plan of Merger, and the Company Board (acting only upon Transactions in order for the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall Shareholder Approval to be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Lawobtained. If the Shareholders’ Shareholders Meeting is adjourned in accordance with the immediately preceding sentenceadjourned, the Company shall convene and hold the Shareholders’ Shareholders Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, provided that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Shareholders Meeting to a date that is less than five (5) Business Days prior to the Termination Outside Date.
(d) Parent Notwithstanding Section 6.5(b), HoldCo may request that the Company, Company adjourn the Shareholders’ Shareholders Meeting for up to ninety sixty (9060) days (but in any event no later than five fifteen (515) Business Days days prior to the Termination Outside Date), (i) if as of the time for which the Shareholders’ Shareholders Meeting is originally scheduled (as set forth in the Shareholder Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Shareholders Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger Merger, and the Transactions, including the Merger, Transactions to obtain the Requisite Company Vote Shareholder Approval, or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of ParentHoldCo, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Shareholders Meeting, in which event the Company shall, in each case, recommend that cause the Shareholders’ Shareholders Meeting to be adjourned in accordance with ParentHoldCo’s request.
(e) At the Shareholders Meeting, and any other meeting of the shareholders of the Company called to seek the Shareholder Approval or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to this Agreement, the Plan of Merger or the Transactions is sought, HoldCo shall (i) vote, or cause to be voted, all Shares held directly or indirectly by any Parent Party or with respect to which any Parent Party otherwise has, directly or indirectly, voting power at such Shareholders Meeting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions and (ii) if necessary to ensure that the Shareholder Approval will be obtained, enforce the agreement of the Rollover Securityholders set forth in the Support Agreement to vote in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions.
Appears in 2 contracts
Samples: Merger Agreement (New Frontier Public Holding Ltd.), Merger Agreement (New Frontier Health Corp)
Shareholders Meeting. (ai) As soon Subject to Section 6.4(e), the Company shall duly call, give notice of and hold a meeting of its shareholders in accordance with the FBCA, the Company Articles of Incorporation and the Company Bylaws (the "Company Shareholders Meeting") as promptly as practicable after the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmation, the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to is cleared by the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, SEC for the purpose of voting upon obtaining the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) Shareholder Approval; provided that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall not be required to call, give notice of or hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04Company Shareholders Meeting on or before the Solicitation Period End Date or, (i) in the event the Company Board shall recommend is continuing to holders of engage in activities pursuant to Section 6.4(a)(ii) with respect to an Acquisition Proposal submitted by a Continuing Party on or before the Shares that they authorize and approve this AgreementSolicitation Period End Date, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) Cut-Off Date. The Company may adjourn or postpone the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Shareholders Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares its shareholders within a reasonable amount number of time in advance of days prior to the Shareholders’ Company Shareholders Meeting, (ii) as otherwise required by applicable Lawand the Company may, (iii) and Parent may on only one occasion require the Company to, adjourn or postpone the Company Shareholders Meeting if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Shareholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Company Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Company Shareholders Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger Agreement and the Transactions, including the Merger, transactions contemplated hereby to obtain the Requisite Shareholder Approval; provided that in no event shall any such adjournment or postponement (x) be longer than thirty (30) days after the originally scheduled meeting date or (y) result in the Company Vote or Shareholders Meeting being held later than five (5) Business Days prior to the End Date.
(ii) The Company shall establish a record date for purposes of determining shareholders entitled to notice of and vote at the Company Shareholders Meeting (the "Record Date") that is approximately forty (40) days prior to the date of the Company Shareholders Meeting. Once the Company has established the Record Date, the Company shall not change such Record Date or establish a different record date for the Company Shareholders Meeting without the prior written consent of Parent, unless required to do so by applicable Law. In the event that the date of the Company Shareholders Meeting as originally called is for any reason adjourned or postponed or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in order writing, it shall implement such adjournment or postponement or other delay in such a way that the Company does not establish a new Record Date for the Company Shareholders Meeting, as so adjourned, postponed or delayed, except as required by applicable Law.
(iii) Subject to allow reasonable additional time for (A) the filing and mailing ofSection 6.4(e), at the Company Shareholders Meeting, the Company Board (after and subject to the Special Committee's recommendation) shall make the Company Recommendation and take all actions reasonably necessary in accordance with applicable Law, the Company Articles of Incorporation and the Company By-Laws to solicit and obtain the Shareholder Approval. Upon reasonable request of Parent, any supplemental or amended disclosure and the Company shall use its reasonable best efforts to advise Parent on a daily basis on each of the last ten (B10) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders Business Days prior to the Shareholders’ date of the Company Shareholders Meeting, as to the aggregate tally of the proxies received by the Company with respect to the Company Shareholder Approval.
(iv) Notwithstanding anything to the contrary set forth in which this Agreement, in the event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned effects a Company Adverse Recommendation Change in accordance with Parent’s requestSection 6.4(e), this Agreement shall not be submitted to the Company's shareholders for the purpose of obtaining the Shareholder Approval and Section 6.2 (other than this Section 6.2(e)(iv)) shall cease to apply.
Appears in 1 contract
Samples: Merger Agreement (China Fire & Security Group, Inc.)
Shareholders Meeting. Promptly following the Issuance Date, the Company shall take all corporate action necessary to call a meeting of its shareholders (awhich may be its annual meeting) As (the “Shareholders Meeting”), which shall occur not later than the 135th day after the Issuance Date, for the purpose of seeking approval of the Company’s shareholders to increase the number of shares of Common Stock the Company is authorized to issue in an amount sufficient to permit the exercise in full of the Warrants in accordance with their terms (a “Capital Event”). In connection therewith, the Company will as soon as reasonably practicable after the SEC confirms that it has no further Issuance Date file with the Commission proxy materials (including a proxy statement and form of proxy) for use at the Shareholders Meeting and, after receiving and promptly responding to any comments of the Commission thereon, shall as soon as reasonably practicable mail such proxy materials to the shareholders of the Company. The Company will comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy Statement”) and any form of proxy to be sent to the shareholders of the Company in connection with the Shareholders Meeting, and the Proxy Statement shall not, on the Schedule 13E-3 but date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to shareholders or at the time of the Shareholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Shareholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Shareholders Meeting, any event no relating to the Company or its Subsidiaries or any of their respective affiliates, officers or directors that is required to be set forth in a supplement or amendment to the Proxy Statement, in addition to the Company’s obligations under the Exchange Act, the Company will promptly inform Xxxx Capital Partners, LLC (the “Placement Agent”) thereof. The Company’s Board of Directors shall recommend to the Company’s shareholders that the shareholders vote in favor of the Capital Event at the Shareholders Meeting and take all commercially reasonable action (including, without limitation, the hiring of The Proxy Advisory Group or another proxy solicitation firm of nationally recognized standing) to solicit the approval of the shareholders for the Capital Event. No later than two (2) days after such confirmationBusiness Days following shareholder approval of the Capital Event, the Company shall file with the Secretary of State of Minnesota a certificate of amendment to the Company’s Articles of Incorporation to effect the Capital Event, which certificate of amendment shall provide that it shall become immediately effective upon filing. The Company shall issue a press release announcing the effectiveness of the Capital Event no later than one (1) Business Day after such filing. The date on which the Capital Event becomes effective is referred to herein as the “Capital Event Date.” If the Capital Event Date does not occur on or prior to the six-month anniversary of the Issuance Date, the Holder shall have the right (the “Repurchase Right”), exercisable by written notice to the Company at any time prior to the Capital Event Date, to require the Company to repurchase this Warrant for a price equal to the greater of (i) establish the Black Scholes Value (substituting mutatis mutandis references to a record date for determining shareholders Fundamental Transaction with references to the Repurchase Right and assuming that the underlying price per share is equal to the arithmetic average of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days five VWAPs determined immediately following the mailing public announcement of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (BRepurchase Right) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders Warrant calculated as of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement Issuance Date and (ii) the Company shall use its reasonable best efforts Black Scholes Value (substituting mutatis mutandis references to solicit from its shareholders proxies in favor a Fundamental Transaction with references to the Repurchase Right and assuming that the underlying price per share is equal to the arithmetic average of the authorization and approval five VWAPs determined immediately following the public announcement of the exercise of the Repurchase Right) of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if Warrant calculated as of the time for date the Holder exercises its Repurchase Right (calculated assuming the Exercisability Date is the date on which such Holder exercises its Repurchase Right) (the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement “Repurchase Price”). No later than one (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy1) to constitute a quorum necessary to conduct the business Business Day following its receipt of notice of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation exercise of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentenceHolder’s Repurchase Right, the Company shall convene and hold publicly announce that the Shareholders’ Meeting as soon as reasonably practicable thereafterHolder has exercised its Repurchase Right hereunder. No later than three (3) Business Days after the Holder exercises its Repurchase Right, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders pay the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior Repurchase Price to the Termination Date.
(d) Parent may request that Holder in immediately available funds to an account specified by the CompanyHolder and upon such payment, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior Holder will surrender this Warrant to the Termination Date), (i) if as of the time Company for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s requestcancellation.
Appears in 1 contract
Shareholders Meeting. (ai) As soon Subject to Section 8.1, as promptly as reasonably practicable after following the date on which the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmation13E-3, the Company shall (i) establish take, in accordance with the Cayman Companies Law and the Company Memorandum and Articles, all action necessary to duly call, give notice of, set a record date for determining and hold an extraordinary general meeting of its shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and "Company Shareholders Meeting"), which shall not change such Record Date or establish a different record be held later than forty (40) days after the date on which the Proxy Statement is mailed to the holders of Company Shares for the Shareholders’ Meeting without purpose of obtaining the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, Shareholder Approval and (ii) mail or cause to be mailed the Proxy Statement a letter to the holders of Shares (Company Shares, notice of the Company Shareholders Meeting and concurrently furnish form of proxy accompanying the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause that will be provided to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Company Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance connection with the instructions solicitation of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of proxies for use at the Company at the Shareholders’ Shareholders Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the The Company may recommend the adjournment of the Shareholders’ Company Shareholders Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Company Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a later date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination End Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parentany party hereto, any supplemental or amended disclosure disclosure, and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders holders of the Company Shares prior to such adjourned meeting.
(iii) Once the Company has established the record date, the Company shall not change such record date or establish a different record date for the Company Shareholders Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), unless permitted by this Agreement, required to do so by applicable Law. In the event that the date of the Company Shareholders Meeting as originally called is for any reason adjourned or otherwise delayed, the Company may establish a new record date.
(iv) Unless there has been a Company Adverse Recommendation Change pursuant to Section 6.4(d), the Company shall (A) make the Company Recommendation, and (B) take all reasonable lawful action to solicit the Shareholder Approval. The Company shall, upon the reasonable request of Parent, use its commercially reasonable efforts to advise Parent at least on a daily basis on each of the last ten (10) Business Days prior to the Shareholders’ Meeting, in which event date of the Company shallShareholders Meeting or any adjournment thereof, in each caseas to the aggregate tally of the proxies received by the Company with respect to the Shareholder Approval. Without the prior written consent of Parent (which consent shall not be unreasonably withheld, recommend that conditioned or delayed), the Shareholders’ authorization and approval of this Agreement and the Plan of Merger and the transactions contemplated hereby (including the Merger) shall be the only matter (other than procedural matters) which the Company shall propose to be acted on by the holders of Company Shares at the Company Shareholders Meeting be adjourned in accordance with Parent’s requestor any adjournment thereof.
Appears in 1 contract
Shareholders Meeting. (a) As soon as practicable after the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmationThe Company will, the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing date of this Agreement, duly call, give notice of, convene and hold a meeting of its shareholders (the Proxy Statement, “Shareholders Meeting”) for the purpose of voting upon seeking the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders Company Requisite Vote and, except if the Board of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date Directors shall have made a Change of mailing the Proxy StatementRecommendation in accordance with Section 6.3, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall will use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, Agreement and the Merger and the Plan of Merger and Merger. The Company will schedule the TransactionsShareholders Meeting as promptly as reasonably practicable following the dissemination of the Proxy Statement in accordance with applicable Law; provided that the Company may, including without the Mergerprior consent of Parent, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything if requested by Parent (with respect to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(cfollowing clause (i)), adjourn or postpone the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to Shareholders Meeting if the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b)Parent, after consultation as applicable, believes in good faith with Parent, the Company may recommend the that such adjournment of the Shareholders’ Meeting or postponement is reasonably necessary to its shareholders allow reasonable additional time to (i) to the extent solicit additional proxies necessary to ensure that achieve quorum or obtain approval of this Agreement by the Company Requisite Vote at the Shareholders Meeting (including any required adjournment or postponement thereof), or (ii) distribute any supplement or amendment to the Proxy Statement is provided to that the holders Board of Shares within a reasonable amount of time Directors has determined in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by after consultation with outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties is necessary under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene Law and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person such supplement or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure amendment to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ MeetingShareholders Meeting (including any adjournment or postponement thereof), provided, however, that the Shareholders Meeting shall not be postponed or adjourned for more than 10 Business Days in which event each instance or 30 Business Days in the aggregate from the originally scheduled date of the Shareholders Meeting without the prior written consent of Parent (if such postponement or adjournment is made by the Company) or by mutual agreement of the Company shalland Parent (if such postponement or adjournment is requested by Parent).
(b) In the event that subsequent to the date of this Agreement, in each casethe Board of Directors makes a Change of Recommendation or shall have provided any notice of its intent to make a Change of Recommendation pursuant to Section 6.3, recommend that except as is necessary to provide for the Shareholders’ expiration of any time period required under Section 6.3, the Company shall nevertheless submit this Agreement, the Merger and the Plan of Merger to the shareholders for approval and authorization at the Shareholders Meeting be adjourned in accordance with Parent’s requestthis Section 6.2 unless this Agreement shall have been terminated in accordance with its terms prior to the Shareholders Meeting.
Appears in 1 contract
Shareholders Meeting. (a) As soon as practicable after Unless the SEC confirms that it has no further comments on Merger is to be effected pursuant to Section 48-21-105 of the Schedule 13E-3 but in any event no later than two (2TBCA pursuant to SECTION 6.02(c) days after such confirmationbelow, the Company, xxxxxx xxrough the Company shall (i) Board, shall, in accordance with applicable law and its charter and bylaws, duly call, establish a record date for determining for, give notice of, convene and hold a special meeting of its shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”"SHAREHOLDERS MEETING") and shall not change such Record Date or establish a different record date for as soon as practicable following the Shareholders’ Meeting without clearance by the prior written consent SEC of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of considering and voting upon the authorization approval and approval adoption of this Agreement, the Plan of Merger and such other matters as may be necessary to effectuate the Transactions. The Company Board, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only based upon the recommendation of the Special Committee, shall (i) recommend to the shareholders of the Company the approval and adoption of this Agreement and the Merger, (ii) include in the Proxy Statement such favorable recommendation of the Company Board that the shareholders of the Company vote in favor of the approval and adoption of this Agreement and the Merger, (iii) take all lawful actions to solicit such approval from the shareholders of the Company and (iv) not withdraw or the Special Committee determinesmodify such favorable recommendation, in its good faith judgment each case, unless the Company Board based upon written advice by outside legal counsel engaged by the recommendation of the Special Committee, which advice shall be confirmed in writing by another after consultation with independent outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience counsel, determines in the corporate Law of the Cayman Islands), good faith that the failure failing to take such action would reasonably be expected is necessary for the Company Board to breach comply with its fiduciary duties to the Company's shareholders under applicable Law. If law.
(b) As soon as practicable following the Shareholders’ Meeting is adjourned Offer Payment Date and in accordance connection with the immediately preceding sentenceShareholders Meeting, unless the Merger is to be effected pursuant to Section 48-21-105 of the TBCA pursuant to SECTION 6.02(C) below, the Company shall convene sxxxx (x) promptly prepare and hold file with the Shareholders’ Meeting as soon as reasonably practicable thereafterSEC (but in no event later than fifteen (15) Business Days after the Offer Payment Date), subject use its reasonable best efforts to have cleared by the immediately preceding sentence; provided, that the Company shall not recommend SEC and thereafter mail to its shareholders as promptly as practicable the adjournment Proxy Statement and all other proxy materials required in connection with such meeting, (ii) notify Acquisition Corp. and Parent of the Shareholders’ Meeting receipt of any comments of the SEC with respect to a date that is less than five the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to Acquisition Corp. and Parent copies of all correspondence between the Company or any representative of the Company and the SEC, (5iii) Business Days shall give Acquisition Corp. and Parent and their counsel the opportunity to review the Proxy Statement prior to its being filed with the Termination Date.
(d) SEC and shall give Acquisition Corp. and Parent may request that and their counsel the Company, adjourn opportunity to review all amendments and supplements to the Shareholders’ Meeting Proxy Statement and all responses to requests for up additional information and replies to ninety (90) days (but in any event no later than five (5) Business Days comments prior to their being filed with, or sent to, the Termination DateSEC, (iv) subject to SECTION 6.02(A), (i) if as of use its reasonable best efforts to obtain the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or necessary approvals by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval its shareholders of this Agreement, the Plan of Offer and the Merger and (v) use its reasonable best efforts otherwise to comply with all legal requirements applicable to such meeting.
(c) Notwithstanding SECTION 6.02 hereof or any other provision to the Transactionscontrary in this Agreement, including in the Mergerevent that Acquisition Corp. owns at least 90% of the outstanding Common Shares pursuant to the Offer, to obtain the Requisite Company Vote Acquisition Corp. Stock Option Agreement or (ii) in order to allow reasonable additional time for (A) otherwise, the filing and mailing ofparties hereto agree, at the reasonable request of ParentParent and subject to Article 7 hereof, any supplemental or amended disclosure to take all necessary and (B) appropriate action to cause the Merger to become effective as soon as practicable after such supplemental or amended disclosure to be disseminated and reviewed by acquisition, without a meeting of shareholders of the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s requestSection 48-21-105 of the TBCA.
Appears in 1 contract
Samples: Acquisition Agreement (Prentice Capital Management, LP)
Shareholders Meeting. (a) As soon The Company will take, in accordance with applicable Law and its Organizational Documents, all action necessary to convene the Company Shareholders Meeting as promptly as practicable (but in no event later than forty five (45) days after (1) the tenth (10th) day after the preliminary Proxy Statement has been filed with the SEC (or, if such date is not a Business Day, the next succeeding Business Day) if by such date the SEC has not informed the Company that it intends to review the Proxy Statement or (2) if by such tenth (10th) day the SEC has informed the Company that it intends to review the Proxy Statement, the date on which the SEC confirms in writing that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after Proxy Statement), to consider and vote upon the approval of this Agreement and to cause such confirmationvote to be taken, the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change postpone or adjourn such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders except (i) to the extent necessary required by Law (after consultation with outside legal counsel) to ensure allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that any the Company has determined, after consultation with outside legal counsel, is reasonably likely to be required supplement under applicable Law or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Lawif, (iii) if as of the time for which the Shareholders’ Company Shareholders Meeting is was originally scheduled (as set forth in the Proxy Statement (after giving effect to any prior adjournmentStatement), there are insufficient Shares shares of Company Capital Stock represented (either in person or by proxy) and voting to approve this Agreement or to constitute a quorum necessary to conduct the business of the Shareholders’ Company Shareholders Meeting; provided that in no event will the Company postpone or adjourn the Company Shareholders Meeting (x) in the case of clause (i), by more than ten (10) Business Days or such other amount of time reasonably agreed by the Company and Parent to be necessary to comply with applicable Law or (ivy) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law case of the Cayman Islandsclause (ii), that by more than ten (10) Business Days in connection with any one postponement, recess or adjournment or more than an aggregate of twenty (20) Business Days from the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Laworiginal date. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the The Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereaftershall, subject to the immediately preceding sentence; providedright of the Company Board to effect a Change of Recommendation in accordance with Section 6.2(e)(ii) or Section 6.2(e)(iii), include the Company Recommendation in the Proxy Statement and use reasonable best efforts to solicit from the shareholders of the Company proxies in favor of the proposal to approve this Agreement and to secure the Requisite Company Vote (it being understood that the foregoing shall not require the Company Board to recommend in favor of the approval of this Agreement, if a Change of Recommendation has been effected in accordance with Section 6.2(e)(ii) or Section 6.2(e)(iii)). The Company shall, at the instruction of Parent, postpone or adjourn the Company Shareholders Meeting if there are not sufficient affirmative votes in person or by proxy at such meeting to approve this Agreement to allow reasonable time for the solicitation of proxies for purposes of obtaining the Requisite Company Vote. The Company will establish a record date for the Company Shareholders Meeting in reasonable consultation with Parent and subject to compliance with the MBCA and Exchange Act. In no event will the record date be changed without Parent’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), except (i) in the event that any supplemental or amended disclosure that the Company shall not recommend has determined, after consultation with outside legal counsel, is reasonably likely to its shareholders be required under applicable Law and the adjournment Company Shareholders Meeting is postponed pursuant to this Section 6.4(a) or (ii) the Company postpones the Company Shareholders Meeting at the instruction of Parent, and in either case, as a result, the initial record date fixed by the Company Board is more than 70 days before the date of the Shareholders’ Meeting subsequent meeting.
(b) The Company agrees (i) to provide Parent reasonably detailed periodic updates concerning proxy solicitation results on a date that is less than five timely basis and (5ii) to give written notice to Parent one (1) Business Days Day prior to the Termination DateCompany Shareholders Meeting and on the day of, but prior to the Company Shareholders Meeting, indicating whether as of such date sufficient proxies representing the Requisite Company Vote have been obtained.
(c) Without limiting the generality of the foregoing, but subject to the Company’s right to terminate this Agreement pursuant to Section 8.4(b), the Company agrees that its obligations to hold the Company Shareholders Meeting pursuant to this Section 6.4 shall not be affected by the making of a Change of Recommendation by the Company Board, and its obligations pursuant to this Section 6.4 shall not be affected by the commencement of or announcement or disclosure of or communication to the Company, of any Acquisition Proposal (including any Superior Proposal) or the occurrence or disclosure of an Intervening Event.
(d) Parent may request that The only matters to be voted upon at the Company, adjourn the Shareholders’ Company Shareholders Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain shall be the Requisite Company Vote or (ii) and routine proposals required in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) connection with such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s requestvote.
Appears in 1 contract
Samples: Merger Agreement (Rogers Corp)
Shareholders Meeting. The Company will take, in accordance with applicable Law and the Company Organization Documents, all action necessary to convene a meeting of its shareholders (athe “Shareholders Meeting”) As soon as promptly as practicable after the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmation, the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares Original Agreement (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any no event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing that the SEC has informed the Company that it has no further comments on, or does not intend to review, the Proxy Statement), to consider and vote upon the Transactions, regardless of whether the Board of Directors of the Company determines at any time that the Transactions are no longer advisable or recommends that the shareholders of the Company reject them or any other Adverse Recommendation Change has occurred at any time. The Board of Directors of the Company shall hold recommend the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders approval of the Shares that they authorize and approve this AgreementTransactions (the “Board Recommendation”), the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts unless permitted to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Mergermake an Adverse Recommendation Change pursuant to Section 9.7(c), and shall take all other lawful action necessary to solicit and obtain such approval by holders of a majority of the outstanding shares of Common Stock (the “Requisite Shareholder Approval”). The Company may, and the Majority Purchasers may require the Company to, adjourn or advisable postpone the Shareholders Meeting one or more times, unless prior to secure such adjournment or postponement the Company shall have received an aggregate number of proxies sufficient for the Requisite Shareholder Approval, provided that the Company, on the one hand, and the Majority Purchasers, on the other hand, may each only adjourn or postpone the Shareholders Meeting for no more than twenty (20) days in the aggregate. The Company Vote. Notwithstanding anything shall, upon the reasonable request of the Majority Purchasers, advise the Purchasers at least on a daily basis on each of the last ten (10) Business Days prior to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance date of the Shareholders Meeting as to the aggregate tally of proxies received by the Company with Section 8.03(c)respect to the Requisite Shareholder Approval. Without the prior written consent of the Majority Purchasers, the Company’s approval of the Transactions shall be the only matter which the Company shall propose to be acted on by the shareholders of the Company at the Shareholders Meeting. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to this Section 6.02 9.5 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person Person of any Competing Transaction or by any Change in the Company RecommendationProposal.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 1 contract
Samples: Securities Purchase Agreement (Prospect Global Resources Inc.)
Shareholders Meeting. (a) As soon promptly as reasonably practicable following the No-Shop Period Start Date and after the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmationProxy Statement, the Company, acting through the Company Board, or such committee thereof, in accordance with applicable Law and its articles of incorporation and bylaws, shall (i) establish a record date for determining shareholders and give notice of, a meeting of the holders of Company entitled to vote at the Shareholders’ Meeting Common Stock (the “Record DateShareholders Meeting”) to consider and shall not change such Record Date or establish a different vote upon the adoption of this Agreement, (ii) cause the Proxy Statement to be mailed to the record holders as of the record date established for the Shareholders’ Shareholders Meeting without and (ii) duly call, convene and hold the Shareholders Meeting; provided, that, the Company shall be permitted to postpone the Shareholders Meeting, or adjourn the Shareholders Meeting beyond the time that the Shareholders Meeting would otherwise be held, only (A) with the prior written consent of ParentParent (which consent shall not be unreasonably withheld, unless conditioned or delayed) and (B) if there are insufficient shares of Company Common Stock represented (either in person or by proxy) in order to approve the Merger or to constitute a quorum necessary to conduct the business of the Shareholders Meeting, (C) to allow additional solicitation of proxies in order to obtain the Company Requisite Vote or (D) as required to do so by applicable Law; provided, that in . In the event that the date of the Shareholders’ Shareholders Meeting as originally called is for any reason adjourned adjourned, postponed or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing (which consent shall not be unreasonably withheld, conditioned or as required otherwise by applicable Laws or stock exchange requirementsdelayed), the Company shall, if possible, it shall use commercially reasonable efforts to implement such adjournment adjournment, postponement or other delay in such a way that the Company does not establish a new Record Date record date for the Shareholders’ Shareholders Meeting, as so adjourned adjourned, postponed or delayed, (ii) mail or cause to be mailed the Proxy Statement delayed except for such new record date as required by applicable Law. If at any time prior to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting Effective Time any event or circumstance relating to the Company shall duly convene and cause to occur as soon as reasonably practicable but in or any event within thirty (30) days following of its Subsidiaries or its or their respective officers or directors should be discovered by the mailing of the Proxy StatementCompany which, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining pursuant to the Shares represented by ADSs (the “Record ADS Holders”)Securities Act or Exchange Act, (B) provide all proxy solicitation materials should be set forth in an amendment or a supplement to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold promptly notify Parent. Each of Parent, Merger Sub and the Shareholders’ MeetingCompany agree to promptly correct any information provided by it for use in the Proxy Statement which shall have become false or misleading. Subject to this Section 6.02 the Company Board’s ability to make a Change of Recommendation and Section 6.046.2(f), (i) the Company Board shall recommend to holders include its recommendation that the shareholders of the Shares that they authorize Company approve and approve adopt this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation Agreement in the Proxy Statement and (ii) the Company shall use its commercially reasonable best efforts to solicit from its shareholders proxies in favor of the authorization such approval and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendationadoption.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 1 contract
Shareholders Meeting. (a) As The Company shall take all action necessary to duly call, give notice of, convene and hold a meeting of its shareholders for the purpose of approving and authorizing this Agreement and the Plan of Merger (the “Shareholders Meeting”) as soon as reasonably practicable after following the SEC confirms that it has no further comments on date of this Agreement. Without limiting the Schedule 13E-3 but generality of the foregoing, the Company in any event no later than two shall hold the Shareholders Meeting within thirty (230) days after such confirmationof the filing of the Proxy Statement with the SEC (and within twenty (20) Business Days following the distribution of the Proxy Statement to the Company’s shareholders), unless the SEC or any other Governmental Entity of competent jurisdiction shall have taken any action or issued any Order that prohibits the Company from delivering the Proxy Statement to its shareholders or holding the Shareholders Meeting. Without the consent of Parent, approving and authorizing this Agreement and Plan of Merger are the only actions that shall be proposed to be acted upon by the Company shareholders at the Shareholders Meeting. The Company shall include in the Proxy Statement the Company Recommendation (subject to Section 6.5(e)) and use its reasonable best efforts to obtain the Company Requisite Vote. The Company shall not adjourn or otherwise postpone or delay the Shareholders Meeting, except with the prior consent of Parent. Notwithstanding the foregoing, the Company shall (i) establish a record date for determining shareholders of the Company entitled be permitted to vote at delay or postpone the Shareholders’ Meeting (but not beyond the “Record Termination Date”) and shall not change if (1) in the good faith judgment of the Company Board, after consultation with its outside legal counsel, a failure to effect such Record Date delay or establish postponement would be reasonably likely to constitute a different record date for breach of the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by Company Board’s fiduciary duties under applicable Lawlaw; provided, that all such postponements or delays, collectively, shall not be for more than ten (10) Business Days in the event that aggregate or (2) such delay or postponement is desirable to obtain the Company Requisite Vote and, in case of a delay of more than ten (10) days, Parent has agreed to such delay or postponement. If the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause matters to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, considered for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after Meeting are changed from the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as information set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct following the business delivery of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and Proxy Statement to the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentenceshareholders, the Company shall convene and hold the Shareholders’ Meeting as soon promptly as reasonably practicable thereafter, subject deliver notice of any such changes if and to the immediately preceding sentence; provided, that extent required under Section 56 of the Company shall not recommend to its shareholders M&A.
(b) In the adjournment of the Shareholders’ Meeting to a date event that is less than five (5) Business Days prior subsequent to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval date of this Agreement, the Company Board makes a Change of Recommendation, the Company shall nevertheless submit this Agreement and the Plan of Merger to the shareholders for approval and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, authorization at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders Shareholders Meeting in accordance with this Section 6.2 unless this Agreement shall have been terminated in accordance with its terms prior to the Shareholders’ Shareholders Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 1 contract
Shareholders Meeting. (a) As soon as practicable after Unless the SEC confirms that it has no further comments on Merger is to be effected pursuant to Section 48-21-105 of the Schedule 13E-3 but in any event no later than two (2TBCA pursuant to SECTION 6.02(C) days after such confirmationbelow, the Compxxx, xxxing through the Company shall (i) Board, shall, in accordance with applicable law and its charter and bylaws, duly call, establish a record date for determining for, give notice of, convene and hold a special meeting of its shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”"SHAREHOLDERS MEETING") and shall not change such Record Date or establish a different record date for as soon as practicable following the Shareholders’ Meeting without clearance by the prior written consent SEC of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of considering and voting upon the authorization approval and approval adoption of this Agreement, the Plan of Merger and such other matters as may be necessary to effectuate the Transactions. The Company Board, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only based upon the recommendation of the Special Committee, shall (i) recommend to the shareholders of the Company the approval and adoption of this Agreement and the Merger, (ii) include in the Proxy Statement such favorable recommendation of the Company Board that the shareholders of the Company vote in favor of the approval and adoption of this Agreement and the Merger, (iii) take all lawful actions to solicit such approval from the shareholders of the Company and (iv) not withdraw or the Special Committee determinesmodify such favorable recommendation, in its good faith judgment each case, unless the Company Board based upon written advice by outside legal counsel engaged by the recommendation of the Special Committee, which advice shall be confirmed in writing by another after consultation with independent outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience counsel, determines in the corporate Law of the Cayman Islands), good faith that the failure failing to take such action would reasonably be expected is necessary for the Company Board to breach comply with its fiduciary duties to the Company's shareholders under applicable Law. If law.
(b) As soon as practicable following the Shareholders’ Meeting is adjourned Offer Payment Date and in accordance connection with the immediately preceding sentenceShareholders Meeting, unless the Merger is to be effected pursuant to Section 48-21-105 of the TBCA pursuant to SECTION 6.02(C) below, the Company shall convene Coxxxxx xxxll (i) promptly prepare and hold file with the Shareholders’ Meeting as soon as reasonably practicable thereafterSEC (but in no event later than fifteen (15) Business Days after the Offer Payment Date), subject use its reasonable best efforts to have cleared by the immediately preceding sentence; provided, that the Company shall not recommend SEC and thereafter mail to its shareholders as promptly as practicable the adjournment Proxy Statement and all other proxy materials required in connection with such meeting, (ii) notify Acquisition Corp. and Parent of the Shareholders’ Meeting receipt of any comments of the SEC with respect to a date that is less than five the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to Acquisition Corp. and Parent copies of all correspondence between the Company or any representative of the Company and the SEC, (5iii) Business Days shall give Acquisition Corp. and Parent and their counsel the opportunity to review the Proxy Statement prior to its being filed with the Termination Date.
(d) SEC and shall give Acquisition Corp. and Parent may request that and their counsel the Company, adjourn opportunity to review all amendments and supplements to the Shareholders’ Meeting Proxy Statement and all responses to requests for up additional information and replies to ninety (90) days (but in any event no later than five (5) Business Days comments prior to their being filed with, or sent to, the Termination DateSEC, (iv) subject to SECTION 6.02(A), (i) if as of use its reasonable best efforts to obtain the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or necessary approvals by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval its shareholders of this Agreement, the Plan of Offer and the Merger and (v) use its reasonable best efforts otherwise to comply with all legal requirements applicable to such meeting.
(c) Notwithstanding SECTION 6.02 hereof or any other provision to the Transactionscontrary in this Agreement, including in the Mergerevent that Acquisition Corp. owns at least 90% of the outstanding Common Shares pursuant to the Offer, to obtain the Requisite Company Vote Acquisition Corp. Stock Option Agreement or (ii) in order to allow reasonable additional time for (A) otherwise, the filing and mailing ofparties hereto agree, at the reasonable request of ParentParent and subject to Article 7 hereof, any supplemental or amended disclosure to take all necessary and (B) appropriate action to cause the Merger to become effective as soon as practicable after such supplemental or amended disclosure to be disseminated and reviewed by acquisition, without a meeting of shareholders of the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s requestSection 48-21-105 of the TBCA.
Appears in 1 contract
Samples: Acquisition Agreement (Prentice Capital Management, LP)
Shareholders Meeting. (ai) As soon promptly as practicable after following the date on which the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmationand the Proxy Statement, the Company shall (ix) establish take, in accordance with the applicable Law and the Company Memorandum and Articles, all action necessary to duly call, give notice of, set a record date for determining and hold an extraordinary general meeting of its shareholders (the “Company Shareholders Meeting”), which shall not be held later than forty-five (45) days after the date on which the Proxy Statement is mailed to the holders of Company Shares for the purpose of obtaining the Shareholder Approval and (y) mail or cause to be mailed a letter to the holders of Company Shares, notice of the Company entitled Shareholders Meeting and form of proxy accompanying the Proxy Statement that will be provided to vote the holders of Company Shares in connection with the solicitation of proxies for use at the Shareholders’ Company Shareholders Meeting.
(ii) The Company may adjourn the Company Shareholders Meeting (x) with the “Record Date”prior written consent of Parent, or (y) to allow reasonable time for filing and mailing of any supplemental or amended disclosure which the Company Board has determined (acting upon the recommendation of the Independent Committee) in good faith after consultation with outside legal counsel is necessary under applicable Laws and for such supplemental or amended disclosure to be disseminated and reviewed by the holders of Company Shares prior to such adjourned meeting.
(iii) Once the Company has established the record date, the Company shall not change such Record Date record date or establish a different record date for the Shareholders’ Company Shareholders Meeting without the prior written consent of Parent, unless permitted by this Agreement or required to do so by applicable Law; providedprovided that, that in the event that the date of the Shareholders’ Company Shareholders Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirementsmay establish a new record date.
(iv) Subject to Section 6.4(d), at the Company Shareholders Meeting, the Company shall, if possible, implement such adjournment or other delay in such a way that through the Company does not establish Board or the Independent Committee, make the Company Recommendation and, unless there has been a new Record Date for Company Adverse Recommendation Change, the Shareholders’ MeetingCompany shall take all reasonable lawful action to solicit the Shareholder Approval. Notwithstanding any Company Adverse Recommendation Change, as so adjourned or delayedunless this Agreement is validly terminated pursuant to and in accordance with Article VIII, (ii) mail or cause to this Agreement shall be mailed the Proxy Statement submitted to the holders of Company Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting obtaining the Shareholder Approval. The Company shall, upon the authorization and approval reasonable request of this AgreementParent, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise advise Parent at least on a daily basis on each of the voting rights pertaining last ten (10) Business Days prior to the Shares represented date of the Company Shareholders Meeting, as to the aggregate tally of the proxies received by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials Company with respect to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS HoldersShareholder Approval. Subject to Section 6.02(b), without Without the prior written consent of Parent, the authorization and approval of this Agreement, Agreement and the Plan of Merger and the Transactions, Transactions (including the Merger, are ) shall be the only matters matter (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, which the Company shall hold the Shareholders’ Meeting. Subject propose to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected acted on by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Company Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and at the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Shareholders Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s requestadjournment thereof.
Appears in 1 contract
Shareholders Meeting. The Company will take, in accordance with applicable Law, the rules of NASDAQ and its articles of incorporation and bylaws, all action necessary to duly call, give notice of, convene and hold a meeting of holders of Shares to consider and vote upon the adoption and approval of this Agreement and the transactions contemplated hereby, including the Merger (athe “Shareholders Meeting”) As soon as promptly as practicable after the execution of this Agreement, and, in any event, no later than thirty-five (35) days following the earliest of the date on which the SEC confirms staff advises the Company that it has no further comments on the Schedule 13E-3 but Proxy Statement or that it is not reviewing the Proxy Statement. The Company shall not postpone or adjourn the Shareholders Meeting except to the extent required by Law, requested by JAB (in any event no later than two (2JAB’s sole discretion) days after such confirmationto permit additional time to solicit the Requisite Company Vote. Unless the board of directors of the Company has made a Change of Recommendation pursuant to Section 6.2(c), the board of directors of the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) recommend such adoption and approval and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts (a) to solicit from its shareholders proxies in favor of the authorization adoption and approval of this Agreement, the Plan of Merger Agreement and the Transactionstransactions contemplated hereby, including the Merger, Merger and shall take all other action necessary or advisable (b) to secure the Requisite Company Vote. The Company shall keep JAB and Merger Sub updated with respect to proxy solicitation results as reasonably requested by JAB or Merger Sub. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly shall have been terminated prior to the date of the Shareholders Meeting in accordance with its terms (including Section 8.03(c8.3(b)), the Company’s obligations pursuant obligation of the Company to call, give notice of, convene and hold the Shareholders Meeting in accordance with this Section 6.02 6.4 shall not be limited or otherwise affected by the commencement, public proposaldisclosure, public disclosure announcement or communication submission to the Company or any other person it of any Competing Transaction Acquisition Proposal or by any a Change in the Company of Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its submit any Superior Proposal for approval by shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination DateCompany.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 1 contract
Shareholders Meeting. The Company will take, in accordance with applicable Law and the Company Organization Documents, all action necessary to convene a meeting of its shareholders (athe "Shareholders Meeting") As soon as promptly as practicable after the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmation, the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares Original Agreement (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any no event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing that the SEC has informed the Company that it has no further comments on, or does not intend to review, the Proxy Statement), to consider and vote upon the Transactions, regardless of whether the Board of Directors of the Company determines at any time that the Transactions are no longer advisable or recommends that the shareholders of the Company reject them or any other Adverse Recommendation Change has occurred at any time. The Board of Directors of the Company shall hold recommend the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders approval of the Shares that they authorize and approve this AgreementTransactions (the "Board Recommendation"), the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts unless permitted to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Mergermake an Adverse Recommendation Change pursuant to Section 9.7(c), and shall take all other lawful action necessary to solicit and obtain such approval by holders of a majority of the outstanding shares of Common Stock (the "Requisite Shareholder Approval"). The Company may, and the Majority Purchasers may require the Company to, adjourn or advisable postpone the Shareholders Meeting one or more times, unless prior to secure such adjournment or postponement the Company shall have received an aggregate number of proxies sufficient for the Requisite Shareholder Approval, provided that the Company, on the one hand, and the Majority Purchasers, on the other hand, may each only adjourn or postpone the Shareholders Meeting for no more than twenty (20) days in the aggregate. The Company Vote. Notwithstanding anything shall, upon the reasonable request of the Majority Purchasers, advise the Purchasers at least on a daily basis on each of the last ten (10) Business Days prior to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance date of the Shareholders Meeting as to the aggregate tally of proxies received by the Company with Section 8.03(c)respect to the Requisite Shareholder Approval. Without the prior written consent of the Majority Purchasers, the Company’s approval of the Transactions shall be the only matter which the Company shall propose to be acted on by the shareholders of the Company at the Shareholders Meeting. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to this Section 6.02 9.5 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person Person of any Competing Transaction or by any Change in the Company RecommendationProposal.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 1 contract
Samples: Securities Purchase Agreement (Prospect Global Resources Inc.)
Shareholders Meeting. (a) As soon as practicable after the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two ten (210) days after such confirmation, the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of ParentParent (such consent not to be unreasonably withheld, conditioned or delayed), unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws Law or stock exchange requirementsrequirement, the Company shall, if possiblereasonably practicable, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, ) as of the Record Date, which meeting the Company shall Date and (iii) duly convene and cause to occur the Shareholders’ Meeting at least fourteen (14) clear days after, but as soon as reasonably practicable but in any event within thirty (30) days following following, the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty forty (3040) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Statement. The Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b)6.02(a) and subject always to the provisions of the memorandum and articles of association of the Company, after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment)Statement, there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, Meeting or (iviii) if an Intervening Event has occurred and to the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice extent required by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn At the Shareholders’ Meeting for up Meeting, Parent shall and shall cause Holdco and Merger Sub to ninety (90) days (but in any event no later than five (5) Business Days prior vote, or cause to be voted, the Termination Date)PE Shares and all other Shares then beneficially owned by Holdco, (i) if as of the time for Parent or Merger Sub or with respect to which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person Holdco, Parent or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting Merger Sub otherwise has, directly or (B) indirectly, voting power in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 1 contract
Shareholders Meeting. Cache, acting through the Cache Board, shall, in accordance with applicable Law:
(a) As duly call, give notice of, convene and hold a meeting of its shareholders (the “Shareholders’ Meeting”) as soon as practicable after the Registration Statement and the Proxy Statement/Prospectus (forming a part of the Registration Statement) become effective with the SEC confirms that it has no further comments on for the Schedule 13E-3 but in any event no later than two (2) days after such confirmationpurpose of approving and adopting this Agreement, the Company shall Merger, the termination of all voting trusts, voting agreements, shareholders’ agreements or similar arrangements listed on Confidential Schedule 3.26 and the transactions contemplated hereby;
(ib) establish a record date for determining require no greater than the minimum vote of the capital stock of Cache required by applicable Law in order to approve this Agreement, the Merger and the transactions contemplated hereby and require no greater than the minimum vote of the capital stock of Cache required by any voting trusts, voting agreements, shareholders’ agreements or similar arrangements listed on Confidential Schedule 3.26 in order to approve the termination thereof;
(c) include in the Proxy Statement/Prospectus the recommendation of the Cache Board that the shareholders of Cache vote in favor of the Company approval and adoption of this Agreement, the Merger and the transactions contemplated hereby; and
(d) cause the Proxy Statement/Prospectus to be mailed to the shareholders of Cache as soon as practicable after the Registration Statement and the Proxy Statement/Prospectus (forming a part of the Registration Statement) become effective with the SEC, and use its commercially reasonable efforts to obtain the approval and adoption of this Agreement, the Merger and the transactions contemplated hereby by shareholders holding at least the minimum number of shares of Cache Stock entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to approve the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties foregoing under applicable Law. If the Shareholders’ Meeting is adjourned The letters to shareholders, notices of meeting, proxy statement of Cache and EQBK and forms of proxy to be distributed to Cache’s and EQBK’s shareholders in accordance connection with the immediately preceding sentence, Merger and this Agreement shall be in form and substance reasonably satisfactory to EQBK and are collectively referred to herein as the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the “Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request/Prospectus”.
Appears in 1 contract
Shareholders Meeting. (a) As soon as practicable after 2.4.1 Subject to Clause 2.4.2 and completion of Closing — Title, the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than quorum for Shareholders’ meetings shall be two (2) days after such confirmationShareholders and shall include at least PAL and Media Port (whether present in person or by proxy or representative). A quorum must be present at the beginning of and throughout the meeting. The Chairman of the Board from time to time shall preside as Chairman at every Shareholders’ meeting. At every meeting of Shareholders, the Company shall (i) establish a record date for determining shareholders chairman of the Company entitled to vote Board shall preside as chairman of the meeting. If there is no chairman of the Board or if the chairman of the Board is not present at the meeting, the Shareholders present shall choose someone of their number to be the chairman. If the Shareholders are unable to choose a chairman for any reason, then the person representing the greatest number of voting shares present in person or by proxy at the meeting shall preside as chairman.
(a) If within fifteen (15) minutes from the time appointed for a Shareholders’ Meeting meeting (or such longer interval as the “Record Date”Chairman of the meeting may think fit to allow) a quorum is not present, the meeting shall stand adjourned to such other day (not being less than three (3) Business Days thereafter) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting time and place as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall may have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, been specified for the purpose of voting upon in the authorization and approval of this Agreement, notice convening the Plan of Merger and the Transactions, including the Merger, and meeting or (iiiif not so specified) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining Chairman of the holders meeting may determine and in the latter case not less than three (3) Business Days’ notice of ADSs who the adjourned meeting shall be entitled to give instructions for given in like manner as in the exercise case of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meetingoriginal meeting.
(b) No later than thirty If within fifteen (3015) days after minutes from the date time appointed for the first adjourned Shareholders’ meeting held pursuant to Clause 2.4.2(a) (or such longer interval as the Chairman of mailing the Proxy Statementmeeting may think fit to allow) a quorum is not present, the Company meeting shall hold again stand adjourned to such other day (not being less than three (3) Business Days thereafter) at such time and place as may have been specified for the Shareholderspurpose in the notice convening the meeting or (if not so specified) as the Shareholder(s) present at the meeting may determine and in the latter case not less than three (3) Business Days’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders notice of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and second adjourned meeting shall include such recommendation be given in the Proxy Statement and (ii) manner as in the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor case of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendationoriginal meeting.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with ParentIf within fifteen (15) minutes from the time appointed for the second adjourned meeting held pursuant to Clause 2.4.2(b) (or such longer interval as the Chairman of the meeting may think fit to allow) a quorum is not present, the Company meeting shall again stand adjourned to such other day (not being less than three (3) Business Days thereafter) at such time and place as may recommend have been specified for the adjournment purpose in the notice convening the meeting or (if not so specified) as the Chairman of the Shareholdersmeeting may determine and in the latter case not less than three (3) Business Days’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance notice of the Shareholders’ Meeting, (ii) third adjourned meeting shall be given in the manner as otherwise required by applicable Law, (iii) if as in the case of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement original meeting and any Shareholder(s) (after giving effect to any prior adjournment), there are insufficient Shares represented (whether present in person or by proxyproxy or representative) to constitute present shall form a quorum necessary to conduct the business of the at such second adjourned Shareholders’ Meetingmeeting.
2.4.3 Unless a longer period of notice is required by applicable law, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five seven (57) Business Days prior notice of each meeting specifying the business to be transacted thereat shall be given to each Shareholder (or the Termination Datesecretary of the Company for distribution), unless waived by each Shareholder. Subject to Clause 3, questions arising at any meeting shall be decided by a majority of votes and each Shareholder present at the meeting shall be entitled to one vote in respect of every Share it holds. In the case of an equality of votes, the Chairman shall not have a second or casting vote.
2.4.4 Any resolution in writing (dincluding a facsimile) Parent may request that or copies thereof signed by all the Company, adjourn Shareholders shall be as valid and effectual as if it had been passed at a meeting duly called and attended by all the Shareholders’ Meeting for up to ninety , and such resolution may consist of several documents in like form, each signed by one (901) days (but or more such Shareholders.
2.4.5 Shareholders may participate in any event no later than five (5) Business Days prior to the Termination Date), (i) if as a meeting by means of the time for which the Shareholders’ Meeting is originally scheduled (as set forth conference telephone or similar communications equipment whereby all persons participating in the Proxy Statement) there are insufficient Shares represented (either meeting can hear each other and such participation shall constitute presence in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s requestperson.
Appears in 1 contract
Samples: Shareholders' Agreement (Charm Communications Inc.)
Shareholders Meeting. (a) The Company, acting through the Company Board, shall, in accordance with applicable Law and its certificate of incorporation and bylaws, duly call, give notice of, convene and hold a special meeting of its shareholders (the “Shareholders Meeting”) as soon as practicable following the execution of this Agreement for the purpose of considering and voting upon the approval and adoption of this Agreement, the Merger and such other matters as may be necessary to effectuate the Transactions. The Company Board shall, subject to Section 5.09, (i) recommend to the shareholders of the Company the approval and adoption of this Agreement, (ii) include in the Proxy Statement such favorable recommendation of the Company Board that the shareholders of the Company vote in favor of the approval and adoption of this Agreement, and (iii) take all lawful action to solicit such approval from the shareholders of the Company. Without limiting the generality of the foregoing, the Company’s obligations pursuant to the first sentence of this Section 5.02(a) shall not be affected by (i) the Company Board taking any action permitted by Section 5.09 (including withdrawing or modifying its approval or recommendation of the Merger and this Agreement) or (ii) the commencement, public announcement, disclosure or other communication to the Company Board of any Acquisition Proposal or any intention (whether or not conditional) with respect to any potential or future Acquisition Proposal, unless, in the case of clause (i), this Agreement is terminated pursuant to Section 7.04(b), or, in the case of clause (ii), this Agreement is terminated pursuant to Section 7.03(b).
(b) As soon as practicable after following the SEC confirms that it has no further comments on execution of this Agreement and in connection with the Schedule 13E-3 but in any event no later than two Shareholders Meeting (2) days after such confirmationand notwithstanding the pendency of the Go Shop Period (as defined hereafter)), the Company shall (i) establish a record date for determining shareholders of promptly prepare and file with the Company entitled to vote at the Shareholders’ Meeting SEC (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that but in the no event that later than fifteen days after the date of hereof), use its best efforts to have cleared by the Shareholders’ Meeting SEC and thereafter mail to its shareholders as originally called is for any reason adjourned or otherwise delayed, promptly as practicable the Company agrees that unless Parent shall have otherwise approved Proxy Statement and all other proxy materials required in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement connection with such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayedmeeting, (ii) mail notify Merger Sub and Parent of the receipt of any comments of the SEC with respect to the Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to Merger Sub and Parent copies of all correspondence between the Company or any representative of the Company and the SEC, (iii) shall give Merger Sub and Parent and their counsel the opportunity to review the Proxy Statement prior to its being filed with the SEC and shall give Merger Sub and Parent and their counsel the opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC, (iv) subject to the terms of Section 5.02(a) and Section 5.09, use its best efforts to obtain the necessary approvals by its shareholders of this Agreement and the Merger and (v) use its best efforts otherwise to comply with all legal requirements applicable to such meeting. Each of the Company and Parent further agrees that if such party shall become aware prior to the Effective Time of any information furnished by such party that would cause to be mailed any of the statements in the Proxy Statement to be false or misleading with respect to any material fact, or to omit to state any material fact necessary to make the holders of Shares (statements therein not false or misleading, to promptly inform the other parties thereof and concurrently furnish to take the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause necessary steps to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of correct the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 1 contract
Samples: Merger Agreement (Blair Corp)
Shareholders Meeting. The Company will take, in accordance with applicable Law and the Company Organization Documents, all action necessary to convene a meeting of its shareholders (athe "Shareholders Meeting") As soon as promptly as practicable after the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmation, the Company shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares hereof (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any no event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing that the SEC has informed the Company that it has no further comments on, or does not intend to review, the Proxy Statement), to consider and vote upon the Transactions, regardless of whether the Board of Directors of the Company determines at any time that the Transactions are no longer advisable or recommends that the shareholders of the Company reject them or any other Adverse Recommendation Change has occurred at any time. The Board of Directors of the Company shall hold recommend the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders approval of the Shares that they authorize and approve this AgreementTransactions (the "Board Recommendation"), the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts unless permitted to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Mergermake an Adverse Recommendation Change pursuant to Section 9.7(c), and shall take all other lawful action necessary to solicit and obtain such approval by holders of a majority of the outstanding shares of Common Stock (the "Requisite Shareholder Approval"). The Company may, and the Majority Purchasers may require the Company to, adjourn or advisable postpone the Shareholders Meeting one or more times, unless prior to secure such adjournment or postponement the Company shall have received an aggregate number of proxies sufficient for the Requisite Shareholder Approval, provided that the Company, on the one hand, and the Majority Purchasers, on the other hand, may each only adjourn or postpone the Shareholders Meeting for no more than twenty (20) days in the aggregate. The Company Vote. Notwithstanding anything shall, upon the reasonable request of the Majority Purchasers, advise the Purchasers at least on a daily basis on each of the last ten (10) Business Days prior to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance date of the Shareholders Meeting as to the aggregate tally of proxies received by the Company with Section 8.03(c)respect to the Requisite Shareholder Approval. Without the prior written consent of the Majority Purchasers, the Company’s approval of the Transactions shall be the only matter which the Company shall propose to be acted on by the shareholders of the Company at the Shareholders Meeting. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to this Section 6.02 9.5 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person Person of any Competing Transaction or by any Change in the Company RecommendationProposal.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s request.
Appears in 1 contract
Samples: Securities Purchase Agreement (Prospect Global Resources Inc.)
Shareholders Meeting. (a) As soon promptly as practicable after the Proxy Statement is cleared by the SEC for mailing to the Company’s shareholders, the Company shall (i) duly call, give notice of, convene and hold a meeting of the holders of Shares (the “Shareholders Meeting”) to consider and vote upon the approval of this Agreement and (ii) use all reasonable efforts to solicit from the holders of Shares proxies in favor of the approval of the Agreement (and such Shareholders Meeting shall in any event be no later than 45 calendar days after (i) the 10th calendar day after the preliminary Proxy Statement therefor has been filed with the SEC if by such date the SEC has not informed the Company that it intends to review the Proxy Statement or (ii) if the SEC has, by the 10th calendar day after the preliminary Proxy Statement therefor has been filed with the SEC, informed the Company that it intends to review the Proxy Statement, the date on which the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmation, Proxy Statement). The Company may postpone or adjourn the Company shall Shareholders Meeting solely (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and ; (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) due to constitute the absence of a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor if the Company has not received proxies representing a sufficient number of Shares for the authorization and approval of this AgreementCompany Requisite Vote, the Plan of Merger and the Transactions, including the Mergerwhether or not a quorum is present, to obtain the Requisite Company Vote solicit additional proxies; or (iiiii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside legal counsel is necessary under applicable Law and (B) for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Shareholders Meeting; provided, in which event that the Company may not postpone or adjourn the Shareholders Meeting more than a total of two times pursuant to clause (ii)(A) and/or clause (ii)(B) of this Section. Notwithstanding the foregoing, the Company shall, in each caseat the request of Parent, recommend to the extent permitted by Law, adjourn the Shareholders Meeting to a date specified by Parent for the absence of a quorum or if the Company has not received proxies representing a sufficient number of Shares for the Company Requisite Vote; provided that the Shareholders’ Company shall not be required to adjourn the Shareholders Meeting more than one time pursuant to this sentence, and no such adjournment pursuant to this sentence shall be adjourned required to be for a period exceeding 10 Business Days. Except in accordance with Parent’s requestthe case of an Change of Recommendation specifically permitted by Section 4.2, the Company, through the Company Board, shall (i) recommend to its shareholders that they adopt this Agreement and the transactions contemplated hereby, (ii) include such recommendation in the Proxy Statement and (iii) publicly reaffirm such recommendation within 24 hours after a request to do so by Parent or Merger Sub.
Appears in 1 contract
Shareholders Meeting. Preparation of the Proxy ----------------------------------------------- Statement; SEC Filings.
(a) As soon as practicable after the SEC confirms that it has no further comments on the Schedule 13E-3 but in any event no later than two (2) days after such confirmationThe Company, acting through the Company Board, shall (i) establish a record date for determining shareholders of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) ---------------------- promptly and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parentduly call, unless required to do so by applicable Law; providedgive notice of, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur hold as soon as reasonably practicable but in any event within thirty (30) days following the mailing a meeting of the Proxy Statement, holders of Company Common Stock for the purpose of voting upon obtaining the authorization and approval of this Agreement, Shareholder Approval (the Plan of Merger and the Transactions, including the Merger"SHAREHOLDERS' MEETING"), and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from and obtain the Shareholder Approval. The Company shall be required to hold the Shareholders' Meeting and comply with its shareholders proxies other obligations under this Agreement regardless of whether the Company Board has effected a Change in favor of Board Recommendation (as defined in Section 6.03(d)) in accordance with Section 6.03(d). The obligations set forth in the authorization and approval preceding sentence shall not be applicable if this Agreement shall have been terminated in accordance with Article VIII.
(b) As promptly as reasonably practicable following the date of this Agreement, the Plan of Merger Company shall prepare the Proxy Statement, the Company shall file the Proxy Statement with the SEC and the Transactions, including Company shall respond as promptly as reasonably practicable to any comments of the Merger, SEC with respect thereto and shall take all other action necessary or advisable cause the Proxy Statement to secure the Requisite Company Vote. Notwithstanding anything be mailed to the contrary contained in Company's shareholders as promptly as reasonably practicable following the date of this Agreement, unless this Agreement is validly terminated in accordance with . Except to the extent expressly permitted by Section 8.03(c6.03(d), the Company’s obligations pursuant to this Section 6.02 Proxy Statement shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to include the Company or any other person Board Recommendation. Each of any Competing Transaction or by any Change in Newco and the Company Recommendationshall furnish all information concerning itself as may be reasonably requested in connection with the preparation, filing and distribution of the Proxy Statement.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required The information supplied by applicable Law, (iii) if as of the time Newco for which the Shareholders’ Meeting is scheduled as set forth inclusion in the Proxy Statement shall not, at (after giving effect i) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to any prior adjournment), there are insufficient Shares represented the Company's shareholders and (in person or by proxyii) to constitute a quorum necessary to conduct the business time of the Shareholders’ ' Meeting, contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If, at any time prior to the date of the Shareholders' Meeting, any event or circumstance relating to Newco, or its officers or directors, is discovered by Newco that should be set forth in an amendment or a supplement to the Proxy Statement, Newco shall promptly inform the Company (iv) if an Intervening Event has occurred and the Company Board (acting only upon shall amend the recommendation Proxy Statement accordingly). All documents that Newco is responsible for filing with the SEC in connection with the transactions contemplated by this Agreement will comply in all material respects with the requirements of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If , including the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination DateExchange Act.
(d) Parent may request that The information supplied by the Company for inclusion in the Proxy Statement shall not, at (i) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the Company, adjourn 's shareholders and (ii) the time of the Shareholders’ Meeting for up ' Meeting, contain any untrue statement of a material fact or fail to ninety (90) days (but state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If, at any event no later than five (5) Business Days time prior to the Termination Datedate of the Shareholders' Meeting, any event or circumstance relating to the Company or its subsidiaries, or their respective officers or directors, is discovered by the Company that should be set forth in an amendment or a supplement to the Proxy Statement, the Company shall promptly inform Newco (and the Company shall amend the Proxy Statement accordingly). All documents that the Company is responsible for filing with the SEC in connection with the transactions contemplated by this Agreement will comply in all material respects with the requirements of applicable Law, including the Exchange Act.
(e) The Company shall promptly notify Newco upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Proxy Statement and shall provide Newco with copies of all correspondence between the Company and its officers, directors, employees, accountants, consultants, auditors, counsel, financial advisors and other agents and representatives (collectively, "REPRESENTATIVES"), on the one hand, and the SEC and its staff, on the other hand. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) if as shall provide Newco an opportunity to review and comment on such document or response and (ii) shall include in such document or response all comments reasonably proposed by Newco.
(f) Each of the time for which Company Reports to be filed by the Shareholders’ Meeting is originally scheduled (as set forth in Company after the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval date of this Agreement, when filed, will comply in all material respects with the Plan applicable requirements of Merger the Securities Act and the TransactionsExchange Act, each as in effect on the date so filed. None of the Company Reports (including any financial statements or schedules included or incorporated by reference therein) to be filed by the MergerCompany after the date of this Agreement, when filed, will contain any untrue statement of a material fact or omit to obtain the Requisite Company Vote state a material fact required to be stated or (ii) incorporated by reference therein or necessary in order to allow reasonable additional time for make the statements therein, in the light of the circumstances under which they were made, not misleading.
(Ag) Each of the filing audited and mailing of, at unaudited financial statements (including any related notes) included in the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure Company Reports to be disseminated and reviewed filed by the Company’s shareholders prior to Company after the Shareholders’ Meetingdate of this Agreement, when filed, will comply in which event all material respects with all applicable accounting requirements and with the Company shallpublished rules and regulations of the SEC with respect thereto, in each case, recommend that the Shareholders’ Meeting be adjourned will have been prepared in accordance with Parent’s requestGAAP (except, in the case of unaudited quarterly statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and will fairly present the consolidated financial position of the Company and its subsidiaries at the respective date thereof and the consolidated results of its and their operations and cash flows for the periods indicated (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments, which were not and are not expected to be material in amount).
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Shareholders Meeting. The Company, acting through the Board of Directors, shall:
(a) As soon use all reasonable efforts to promptly prepare and file with the Securities and Exchange Commission (the “SEC”) a proxy statement which meets the applicable requirements of the Securities Exchange Act of 1934, as practicable after amended (the “Exchange Act”) for the purposes of considering and taking action upon this Agreement (the “Proxy Statement”) and obtain and furnish the information required to be included by it in the Proxy Statement and respond promptly to any comments made by the SEC confirms that it has no further comments with respect to the Proxy Statement and any preliminary version thereof and obtain SEC clearance of the Proxy Statement. The Company shall allow Parent reasonable opportunity to review and comment on the Schedule 13E-3 but Proxy Statement and all amendments and supplements thereto;
(b) include in any event no later than two the Proxy Statement (2as defined above) days after such confirmation, the Company shall (i) establish a record date for determining recommendation of the Board of Directors that shareholders of the Company entitled vote in favor of the approval of this Agreement; provided that, notwithstanding anything to vote at the Shareholders’ Meeting contrary in this Agreement, the Board of Directors may withdraw, modify or amend its recommendation if the Board of Directors after consultation with its counsel and financial advisers, determines such recommendation would result in a breach of its fiduciary duties to the Company’s shareholders under applicable law, in which case any such withdrawal, modification or amendment shall not constitute a breach of this Agreement;
(c) the Company shall engage a proxy solicitor reasonably acceptable to Parent and shall use its reasonable efforts to otherwise solicit proxies in connection with the shareholders meeting unless the Board of Directors of the Company, after receiving a bona fide unsolicited Superior Competing Transaction (as defined in Section 6.2 below) and after consulting with its legal and financial advisors, determines that to do so would result in a breach of its fiduciary duties under applicable law;
(d) duly call, give notice of, convene and hold a special meeting of its shareholders for the purpose of considering and taking action upon this Agreement (the “Record DateShareholders Meeting”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent), unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed held as soon as practicable following filing of the Proxy Statement to with the holders of Shares (SEC and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as completion of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing SEC’s review of the Proxy Statement, for unless the purpose Board of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise Directors of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”)Company, (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b)after receiving a bona fide, without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any unsolicited Superior Competing Transaction or by any Change and after consulting with its legal and financial advisors, determines that to do so would result in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation a breach in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, law;
(e) the Company shall convene and hold distribute the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject Proxy Statement to participants in the Company Employee Stock Ownership Plan (the “ESOP”) to the immediately preceding sentence; provided, that the extent required by applicable law. The Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Meeting is originally scheduled (as set forth vote all Shares in the Proxy Statement) there ESOP which are insufficient Shares represented (either in person or unallocated to approve and adopt the Merger and the transactions to be consummated thereby. At such meeting, Parent and Newco and any Person which owns more than 30% of Parent will vote all Shares, if any, owned by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting them in favor of the authorization and approval of this Agreement, the Plan of Merger Agreement and the Transactions, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned in accordance with Parent’s requesttransactions contemplated hereby.
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Shareholders Meeting. The Company, acting through its Board of Directors (or a committee thereof), shall (a) As soon as practicable after the SEC confirms that it has no further comments on the Schedule 13E-3 promptly but in any no event no later than two ten (210) days after such confirmationthe date hereof (but subject to the last sentence of this Section 6.7), take all action required under the CICL, the Company shall (i) establish a record date for determining shareholders Memorandum and Articles of Association and the applicable requirements of the Company entitled New York Stock Exchange necessary to vote at the Shareholders’ Meeting (the “Record Date”) duly call and shall not change such Record Date or establish give notice of a different record date for the Shareholders’ Meeting without the prior written consent meeting of Parent, unless required to do so by applicable Law; provided, that in the event that the date of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed the Proxy Statement to the holders of Shares (and concurrently furnish the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, its shareholders for the purpose of voting upon the authorization approving, ratifying, confirming and approval of adopting this Agreement, the Plan of Merger and the Transactionstransactions in connection with the consummation of the Merger (including any adjournment or postponement thereof, including the Merger“Shareholders Meeting”), and (iiib) instruct convene and hold the Shareholders Meeting within twenty-one (21) days of the date such notice of a meeting is mailed to Company shareholders; provided that the Shareholders Meeting and any adjournment or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who postponement thereof shall be entitled to give instructions convened for a date previously agreed in writing between the exercise of Company and the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS Holders. Subject to Section 6.02(b), without the consent of Parent, the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) that shall be proposed to be voted upon by the shareholders of the Company at the Shareholders’ Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the Company shall hold the Shareholders’ Meeting. Subject not be permitted to this Section 6.02 and Section 6.04postpone, recess, adjourn or cancel such meeting, unless (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b), after consultation in good faith with Parent, the Company may recommend the adjournment of the Shareholders’ Meeting to its shareholders (i) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iiiii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i) if as of the time for which the Shareholders’ Shareholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) and voting to constitute a quorum necessary to conduct the business of the Shareholders’ Shareholders Meeting or (Biii) voting Parent otherwise provides written consent to such postponements or adjournment. The Company, acting through its Board of Directors (or a committee thereof), shall (a) include in favor the Proxy Statement the Recommendation and (b) unless the Board of Directors has made a Company Adverse Recommendation Change, use its reasonable best efforts to obtain the Company Requisite Vote; provided that, the Board of Directors may fail to include the Recommendation in the Proxy Statement or withdraw, modify, qualify or change the Recommendation (subject to any applicable requirements under the CICL), or formally resolve to effect or publicly announce an intention to effect any of the authorization foregoing (a “Company Adverse Recommendation Change”), only in accordance with the terms and approval conditions of Section 6.5(c). Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Agreement shall be deemed to relieve the Company of its obligation to submit the Plan of Merger and to its shareholders for a vote on the Transactionsapproval thereof. The Company agrees that, including the Merger, to obtain the Requisite Company Vote or (ii) in order to allow reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure and (B) such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Meeting, in which event the Company shall, in each case, recommend that the Shareholders’ Meeting be adjourned unless this Agreement shall have been terminated in accordance with Parent’s requestSection 8.1, its obligations to hold the Shareholders Meeting pursuant to this Section 6.7 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Acquisition Proposal or by any Company Adverse Recommendation Change.
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Shareholders Meeting. (a) As The Company shall take all action necessary to duly call, give notice of, convene and hold a meeting of its shareholders for the purpose of approving and authorizing this Agreement and the Plan of Merger (the “Shareholders Meeting”) as soon as reasonably practicable after following the SEC confirms date of this Agreement. Without limiting the generality of the foregoing and provided that it Parent has no further comments on obtained pre-clearance of the Schedule 13E-3 but Merger from NDRC in the form of a confirmation letter (确认函) or its equivalent (the “NDRC Pre-Clearance”), the Company in any event no later than two shall hold the Shareholders Meeting within thirty (230) days after such confirmation, the Company shall (i) establish a record date for determining shareholders Business Days of the Company entitled to vote at the Shareholders’ Meeting (the “Record Date”) and shall not change such Record Date or establish a different record date for the Shareholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law; provided, that in the event that the date filing of the Shareholders’ Meeting as originally called is for any reason adjourned or otherwise delayed, Proxy Statement with the Company agrees that unless Parent shall have otherwise approved in writing or as required otherwise by applicable Laws or stock exchange requirements, SEC (and within twenty-five (25) Business Days following the Company shall, if possible, implement such adjournment or other delay in such a way that the Company does not establish a new Record Date for the Shareholders’ Meeting, as so adjourned or delayed, (ii) mail or cause to be mailed distribution of the Proxy Statement to the holders Company’s shareholders), unless the SEC or any other Governmental Entity of Shares (and concurrently furnish competent jurisdiction shall have taken any action or issued any Order that prohibits the Company from delivering the Proxy Statement under Form 6-K), including Shares represented by ADSs, as of to its shareholders or holding the Record Date, which meeting the Company shall duly convene and cause to occur as soon as reasonably practicable but in any event within thirty (30) days following the mailing of the Proxy Statement, for the purpose of voting upon the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and (iii) instruct or otherwise cause the Depository to (A) fix the Record Date as the record date for determining the holders of ADSs who shall be entitled to give instructions for the exercise of the voting rights pertaining to the Shares represented by ADSs (the “Record ADS Holders”), (B) provide all proxy solicitation materials to all Record ADS Holders and (C) vote all Shares represented by ADSs in accordance with the instructions of such corresponding Record ADS HoldersShareholders Meeting. Subject to Section 6.02(b), without Without the consent of Parent, the authorization approving and approval of authorizing this Agreement, the Agreement and Plan of Merger and the Transactions, including the Merger, are the only matters (other than procedural matters) actions that shall be proposed to be voted acted upon by the Company shareholders of the Company at the Shareholders’ Shareholders Meeting.
(b) No later than thirty (30) days after the date of mailing the Proxy Statement, the . The Company shall hold the Shareholders’ Meeting. Subject to this Section 6.02 and Section 6.04, (i) the Company Board shall recommend to holders of the Shares that they authorize and approve this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall include such recommendation in the Proxy Statement and (ii) the Company shall Recommendation (subject to Section 7.5(e)) and use its reasonable best efforts to solicit from its shareholders proxies obtain the Company Requisite Vote. The Company shall not adjourn or otherwise postpone or delay the Shareholders Meeting, except with the prior consent of Parent. Notwithstanding the foregoing, the Company shall be permitted to, adjourn, delay or postpone the Shareholders Meeting (but not beyond the Termination Date) if (1) in favor the good faith judgment of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, and shall take all other action necessary or advisable to secure the Requisite Company Vote. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with Section 8.03(c), the Company’s obligations pursuant to this Section 6.02 shall not be limited or otherwise affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Competing Transaction or by any Change in the Company Recommendation.
(c) Notwithstanding Section 6.02(b)Board, after consultation in good faith with Parentits outside legal counsel, the Company may recommend the adjournment of the Shareholders’ Meeting a failure to its shareholders (i) to the extent necessary to ensure that any required supplement effect such adjournment, delay or amendment to the Proxy Statement is provided to the holders of Shares within a reasonable amount of time in advance of the Shareholders’ Meeting, (ii) as otherwise required by applicable Law, (iii) if as of the time for which the Shareholders’ Meeting is scheduled as set forth in the Proxy Statement (after giving effect to any prior adjournment), there are insufficient Shares represented (in person or by proxy) postponement would be reasonably likely to constitute a quorum necessary to conduct the business breach of the Shareholders’ Meeting, or (iv) if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment upon written advice by outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands), that the failure to take such action would reasonably be expected to breach its Board’s fiduciary duties under applicable Law. If the Shareholders’ Meeting is adjourned in accordance with the immediately preceding sentence, the Company shall convene and hold the Shareholders’ Meeting as soon as reasonably practicable thereafter, subject to the immediately preceding sentence; provided, that the Company shall not recommend to its shareholders the adjournment of the Shareholders’ Meeting to a date that is less than five (5) Business Days prior to the Termination Date.
(d) Parent may request that the Company, adjourn the Shareholders’ Meeting for up to ninety (90) days (but in any event no later than five (5) Business Days prior to the Termination Date), (i2) if as of the time for which the Shareholders’ Meeting such adjournment, delay or postponement is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Shareholders’ Meeting or (B) voting in favor of the authorization and approval of this Agreement, the Plan of Merger and the Transactions, including the Merger, desirable to obtain the Company Requisite Company Vote or (ii3) in order to allow such adjournment, delay or postponement is for the purpose of allowing reasonable additional time for (A) the filing and mailing of, at the reasonable request of Parent, any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside counsel is required by applicable Laws and (B) for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’ Shareholders Meeting; provided, that all such postponements or delays, collectively, shall not be for more than ten (10) Business Days in which event the aggregate. If the date of the Shareholders Meeting or the matters to be considered for approval at the Shareholders Meeting are changed from the information set forth in the Proxy Statement following the delivery of the Proxy Statement to the shareholders, the Company shallshall as promptly as reasonably practicable deliver notice of any such changes if and to the extent required under Section 54A of the Company M&A.
(b) In the event that subsequent to the date of this Agreement, in each casethe Company Board makes a Change of Recommendation, recommend that the Shareholders’ Company shall nevertheless submit this Agreement and the Plan of Merger to the shareholders for approval and authorization at the Shareholders Meeting be adjourned in accordance with Parent’s requestthis Section 7.2 unless this Agreement shall have been terminated in accordance with its terms prior to the Shareholders Meeting.
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