Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% of the outstanding Shares, in which case Buyer shall cause the Merger to take place without a vote of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Code, if required by applicable law, the Company shall cause a special meeting of its stockholders (the "Company Stockholders Meeting") to be ---------------------------- duly called and held as soon as reasonably practicable after the purchase of Shares pursuant to the Offer for the purpose of acting upon proposals to approve this Agreement and all actions contemplated hereby that require the approval of the Company's stockholders. The Board shall (i) recommend to the stockholders of the Company the approval and adoption of this Agreement and the Merger, (ii) include in the Company Proxy Statement such favorable recommendation of the Board that the stockholders of the Company vote in favor of the approval and adoption of this Agreement and the Merger, (iii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company agrees that its obligations set forth in the first sentence of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, of its recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders Meeting, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement relating to the matters to be considered at the Company Stockholders Meeting, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its stockholders as promptly as practicable thereafter. (b) In connection with the Company Stockholders Meeting, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required. The stockholder vote required for approval of the Merger will be no greater than that set forth in the Georgia Code. Subject to the terms of 6.02(a), the Company shall use its reasonable best efforts to solicit from stockholders of the Company proxies in favor of the Merger and shall take all other reasonable action necessary or, in the reasonable opinion of Buyer, advisable to secure any vote of stockholders required by the Georgia Code to effect the Merger. Notwithstanding the foregoing, if Buyer of Merger Subsidiary or any other subsidiary of Buyer shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, the Company shall, at the request of Buyer, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without the approval of the stockholders of the Company, in accordance with Section 14-2-1104 of the Georgia Code.
Appears in 1 contract
Samples: Agreement and Plan of Merger (FLD Acquisition Corp)
Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% of the outstanding Shares, in which case Buyer shall cause the Merger to take place without a vote of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Code, if required by applicable law, the The Company shall cause a special meeting of its stockholders (the "Company Stockholders Meeting") to be ---------------------------- duly called and held as soon as reasonably practicable after the purchase execution of Shares pursuant to the Offer this Agreement for the purpose of acting upon proposals to approve voting on the approval of this Agreement and all actions contemplated hereby that require the approval Merger. Subject to the applicable provisions of Sections 2.03(b), 5.01 and 8.04 hereof, the Board of Directors of the Company's stockholders. The Board Company shall (i) recommend to the stockholders of the Company in the Proxy Statement (as hereinafter defined) that they vote in favor of approval and adoption of this Agreement and the Merger, (ii) include in and the Company Proxy Statement shall solicit proxies in connection with such favorable recommendation meeting in favor of such approval, shall engage a nationally recognized proxy solicitor reasonably acceptable to Buyer to solicit such proxies, and shall otherwise use its reasonable best efforts to secure the Board that approval of the stockholders of the Company required to effect the Merger under applicable law. Simultaneously with the execution of this Agreement, GSCP Recovery, Inc. has entered into a Voting Agreement dated the date hereof (the "Voting Agreement") with Buyer, pursuant to which, among other agreements, it has granted to Xxxxxx Xxxxxxx and Xxxxx Xxxxxxxxxxx, with full power of substitution, an irrevocable proxy (the "Irrevocable Proxy") to vote in favor all shares of the approval and adoption Company Common Stock held of record by such stockholder (or over which such stockholder has voting power, by contract or otherwise) to approve this Agreement and the Merger, (iii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company agrees that its obligations set forth in the first sentence of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, of its recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders Meeting, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement relating has been earlier terminated pursuant to the matters to be considered at the Company Stockholders Meeting, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its stockholders as promptly as practicable thereafterSection 5.01 hereof.
(b) In connection The Company will prepare, and file with the Company Stockholders MeetingSecurities and Exchange Commission (the "SEC"), a proxy statement, together with a form of proxy, with respect to the Company shall promptly take all action necessary stockholders meeting described in accordance Section 2.02(a) as soon as reasonably practicable after the execution of this Agreement (such proxy statement, together with any amendments thereof or supplements thereto, being herein called the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required"Proxy Statement"). The stockholder vote required for approval of the Merger will be no greater than that set forth in the Georgia Code. Subject to the terms of 6.02(a), the Company (i) shall use its reasonable best efforts to solicit from stockholders of have the Company proxies in favor of the Merger and shall take all other reasonable action necessary or, in the reasonable opinion of Buyer, advisable to secure any vote of stockholders required Proxy Statement cleared by the Georgia Code to effect the Merger. Notwithstanding the foregoing, if Buyer of Merger Subsidiary or any other subsidiary of Buyer shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, the Company shall, at the request of Buyer, take all necessary and appropriate action to cause the Merger to become effective SEC as soon as reasonably practicable, if such clearance is required, (ii) shall as soon as reasonably practicable after such acquisition, without thereafter mail the approval of Proxy Statement to the stockholders of the Company, and (iii) shall otherwise comply in accordance all material respects with Section 14-2-1104 all applicable legal requirements in respect of such meeting. The Company shall notify Buyer promptly of the Georgia Codereceipt of any comments from the SEC or its staff and any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Buyer with copies of all correspondence between the Company and its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement or the Merger. Prior to filing the Proxy Statement with the SEC, the Company shall provide reasonable opportunity for Buyer to review and comment upon the contents of the Proxy Statement and shall not include therein any information to which counsel to Buyer shall reasonably object (unless counsel to the Company shall reasonably determine that such information should be included consistent with applicable legal principles) or omit therefrom any information which counsel to Buyer shall reasonably request. If at any time prior to the meeting of the stockholders of the Company contemplated by Section 2.02(a), any event relating to the Company or any of its subsidiaries, officers or directors is discovered by the Company which should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly so inform Buyer.
(c) Subject to the applicable provisions of Sections 5.01 and 8.04 hereof, the Board of Directors of the Company shall not withdraw or qualify, or propose to withdraw or qualify, the approval or recommendation by the Board of Directors of the Company of this Agreement or the Merger. Nothing contained in this Section 2.02(c) shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Appears in 1 contract
Samples: Merger Agreement (Land O Lakes Inc)
Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% As promptly as reasonably practicable following the date of the outstanding Shares, in which case Buyer shall cause the Merger to take place without a vote of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Code, if required by applicable lawthis Agreement, the Company shall cause prepare in accordance with the provisions of the Exchange Act the Proxy Statement and Schedule 13E-3 relating to the adoption of this Agreement by the Company’s stockholders and file the Proxy Statement and Schedule 13E-3 with the SEC. Parent, Merger Sub and the Company shall cooperate with each other in connection with the preparation of the Proxy Statement. The Company will use all of its reasonable best efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after such filing. Each Party agrees to correct any information provided by it for use in the Proxy Statement or the Schedule 13E-3 which has become false or misleading in any material respect.
(b) The Company shall, acting through its Board of Directors and in accordance with applicable Law and the Constituent Documents of the Company, (i) duly take all lawful action to call, give notice of, convene and hold a special meeting of its stockholders (the "Company Stockholders Meeting") to be ---------------------------- duly called and held on a date as soon as reasonably practicable (and in no event later than 45 days after the purchase of Shares pursuant to the Offer for the purpose of acting upon proposals to approve this Agreement and all actions contemplated hereby that require the approval mailing of the Company's stockholders. The Board shall (i) recommend Proxy Statement to the stockholders of the Company) after the Proxy Statement is cleared by the SEC (the “Company the approval Stockholders Meeting”) to consider and vote upon adoption of this Agreement and the Merger, transactions contemplated by this Agreement in the manner provided for in this Agreement and (ii) include use all lawful efforts to solicit proxies in favor of the Company adoption of this Agreement and the transactions contemplated by this Agreement. Except as provided in Sections 5.7(d) and (e), the Proxy Statement such favorable shall contain the recommendation of the Board of Directors of the Company that the stockholders of the Company vote in favor of the approval and adoption of adopt this Agreement and the Mergertransactions contemplated by this Agreement (the “Company Recommendation”), (iii) take all lawful action reasonably required to solicit such approval from the stockholders together with a copy of the opinion referred to in Section 3.20, and the Company Recommendation shall not be withdrawn, modified or amended, subject to any withdrawal, modification or amendment permitted by Sections 5.7(d) and (iv) not withdraw or modify such favorable recommendatione). Without limiting the generality of the foregoing, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company agrees that its ’s obligations set forth in pursuant to the first sentence of this Section 6.02(a5.13(b) shall not be affected by the withdrawal commencement, public proposal, public disclosure or --------------- modification by communication to the BoardCompany of any Superior Proposal or any Adverse Recommendation Change pursuant to Section 5.7(e). Notwithstanding the foregoing, in accordance with if the immediately preceding sentenceCompany properly exercises its right to terminate this Agreement pursuant to Section 7.1(d)(1), the Company’s obligations pursuant to this Section 5.13(b) shall terminate.
(c) The Company will use all of its recommendation reasonable best efforts to cause the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders Meeting, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement relating to the matters to be considered at the Company Stockholders Meeting, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its the Company’s stockholders as promptly as practicable thereafter.
after the Proxy Statement is cleared by the SEC. The Company shall as promptly as practicable notify Parent and Merger Sub of the receipt of any oral or written comments from the SEC relating to the Proxy Statement and any request by the SEC for any amendment to the Proxy Statement or the Schedule 13E-3 or for additional information. The Company shall cooperate and provide Parent and Merger Sub with a reasonable opportunity to review and comment on the draft of the Proxy Statement (bincluding each amendment or supplement thereto) In and all responses to requests for additional information by and replies to comments of the SEC (provided that the Company shall consult with Parent in connection with the Company Stockholders Meetingpreparation of all such documents or responses and give due consideration to all comments reasonably proposed by Parent in respect of such documents and responses) prior to filing such with or sending such to the SEC, and the Company shall promptly take Parties will provide each other with copies of all action necessary in accordance such filings made and correspondence with the Georgia Code and its Articles of Incorporation and Bylaws SEC. If at any time prior to convene the Company Stockholders MeetingEffective Time, if such meeting is required. The stockholder vote required for approval of the Merger will any information should be no greater than that discovered by any Party which should be set forth in the Georgia Code. Subject an amendment or supplement to the terms Proxy Statement so that the Proxy Statement would not include any misstatement of 6.02(a), a material fact or omit to state any material fact required to be stated therein or necessary to make the Company shall use its reasonable best efforts to solicit from stockholders of the Company proxies in favor of the Merger and shall take all other reasonable action necessary orstatements therein, in the reasonable opinion light of Buyerthe circumstances under which they were made, advisable not misleading, the Party which discovers such information shall promptly notify the other Parties hereto and, to secure any vote of stockholders the extent required by the Georgia Code to effect the Merger. Notwithstanding the foregoingapplicable Law, if Buyer of Merger Subsidiary an appropriate amendment or any other subsidiary of Buyer supplement describing such information shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, be promptly filed by the Company shall, at with the request of Buyer, take all necessary SEC and appropriate action disseminated by the Company to cause the Merger to become effective as soon as practicable after such acquisition, without the approval of the stockholders of the Company, in accordance with Section 14-2-1104 of the Georgia Code.
Appears in 1 contract
Samples: Merger Agreement (Seitel Inc)
Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% Subject to the next two sentences of this Section 5.2(a), the outstanding SharesCompany shall, acting through the Company Board and in which case Buyer shall cause accordance with applicable law and the Merger to take place without a vote Certificate of Incorporation and the by-laws of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Code, if required by applicable lawduly call, the Company shall cause give notice of, convene and hold a special meeting of its stockholders (the "Company Stockholders “Special Meeting"”) to be ---------------------------- duly called and held as soon promptly as reasonably practicable after the purchase of Shares pursuant to the Offer date hereof for the purpose of acting considering and taking action upon proposals to approve this Agreement and all actions contemplated hereby that require the Merger and shall solicit proxies in favor of approval of the Company's stockholders. The Board shall (i) recommend to the stockholders of the Company the approval and adoption of this Agreement and the Merger. The Company Board shall recommend approval of the Agreement and the Merger by the Company’s stockholders (the “Company Recommendation”); provided that, notwithstanding anything in this Agreement to the contrary, the Company Board may determine (i) not to make or may withdraw, modify or change such recommendation (a “Change in Recommendation”), and (ii) include in the Company Proxy Statement such favorable recommendation of the Board that the stockholders of the Company vote not to solicit proxies in favor of the approval and adoption of this Agreement and the MergerMerger if, in the case of both clauses (iiii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendationii), the Special Committee has determined in each case, unless the Boardgood faith, after consultation with its independent outside legal counseland financial advisors, determines in good faith that failing the Company has received a Superior Proposal and (b) failure to take such action is necessary for could reasonably be expected to result in a breach of the Board to comply with its Company Board’s fiduciary duties to the Company's stockholders under applicable law. The Company agrees that may, if it receives a written bona fide unsolicited Acquisition Proposal (as defined in Section 5.4(b) hereof), delay the mailing of the Proxy Statement or the holding of the Special Meeting, in each case for such time as is necessary for the Company Board to consider such Acquisition Proposal and to determine the effect, if any, on its obligations set forth recommendation in favor of the first sentence Merger.
(b) Promptly following the date of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, of its recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders MeetingAgreement, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement proxy statement relating to the matters to be considered at approval of the Merger by the Company’s stockholders (as amended or supplemented, the “Proxy Statement”), and the parties hereto shall prepare a Schedule 13E-3 filing (as amended or supplemented, the “Schedule 13E-3”). Holding, Acquisition Sub and the Company Stockholders Meetingshall cooperate with each other in connection with the preparation of the foregoing documents. The Company will use its reasonable best efforts to have the Proxy Statement, respond and the parties hereto will use their reasonable best efforts to have the Schedule 13E-3, cleared by the SEC as promptly as practicable to after such filing.
(c) The Company shall as promptly as practicable notify Holding and Acquisition Sub of the receipt of any oral or written comments made by from the SEC with respect relating to the preliminary Proxy Statement. Subject to the last sentence of Section 5.2(a), the Company Proxy Statement and will use its reasonable best efforts to cause a definitive Company the Proxy Statement to be mailed to its the Company’s stockholders as promptly as practicable thereafter.
after the Proxy Statement is cleared by the SEC. The Company shall cooperate and provide Holding and Acquisition Sub with a reasonable opportunity to review and comment on the draft of the Proxy Statement (bincluding each amendment or supplement thereto), and the parties hereto shall cooperate and provide each other with a reasonable opportunity to review and comment on the draft Schedule 13E-3 (including each amendment or supplement thereto) In connection and all responses to requests for additional information by and replies to comments of the SEC, prior to filing such with or sending such to the SEC, and the parties hereto will provide each other with copies of all such filings made and correspondence with the Company Stockholders MeetingSEC. If at any time prior to the Effective Time, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required. The stockholder vote required for approval of the Merger will any information should be no greater than that discovered by any party which should be set forth in the Georgia Code. Subject an amendment or supplement to the terms Proxy Statement or the Schedule 13E-3 so that the Proxy Statement or the Schedule 13E-3 would not include any misstatement of 6.02(a), a material fact or omit to state any material fact required to be stated therein or necessary to make the Company shall use its reasonable best efforts to solicit from stockholders of the Company proxies in favor of the Merger and shall take all other reasonable action necessary orstatements therein, in the reasonable opinion light of Buyerthe circumstances under which they were made, advisable not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to secure any vote of stockholders the extent required by the Georgia Code to effect the Merger. Notwithstanding the foregoingapplicable law, if Buyer of Merger Subsidiary an appropriate amendment or any other subsidiary of Buyer supplement describing such information shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, be promptly filed by the Company shall, at with the request of Buyer, take all necessary SEC and appropriate action disseminated by the Company to cause the Merger to become effective as soon as practicable after such acquisition, without the approval of the stockholders of the Company, in accordance with Section 14-2-1104 of the Georgia Code.
Appears in 1 contract
Samples: Merger Agreement (Bway Corp)
Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% Subject to the next two sentences of the outstanding Sharesthis Section 5.2(a), in which case Buyer shall cause the Merger to take place without a vote of the Company's stockholders as permitted by Section 14-2-1104 of , acting through the Georgia Code, if required by applicable lawCompany Board and in accordance with Applicable Law, the Company Certificate of Incorporation and the Company Bylaws and the rules of the Nasdaq National Market, shall cause use its reasonable best efforts to duly call, give notice of, convene and hold a special meeting of its stockholders (the "Company Stockholders “Special Meeting"”) to be ---------------------------- duly called and held as soon promptly as reasonably practicable after the purchase of Shares pursuant to the Offer date hereof for the purpose of acting considering and taking action upon proposals to approve this Agreement and all actions contemplated hereby that require the approval of the Company's stockholders. The Board shall (i) recommend to the stockholders of the Company the approval and adoption of this Agreement and the Merger, (ii) include in the Company Proxy Statement such favorable recommendation of the Board that the stockholders of the Company vote in favor of the approval Merger and adoption of this Agreement and the Merger, (iii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company agrees that its obligations set forth in the first sentence of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, of its recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders Meeting, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement relating to the matters to be considered at the Company Stockholders Meeting, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its stockholders as promptly as practicable thereafter.
(b) In connection with the Company Stockholders Meeting, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required. The stockholder vote required for approval of the Merger will be no greater than that set forth in the Georgia Code. Subject to the terms of 6.02(a), the Company shall use its reasonable best efforts to solicit from proxies in favor of approval of this Agreement and the transactions contemplated hereby, including the Merger. The Company Board shall recommend that holders of shares of Company Common Stock vote to adopt this Agreement and the transactions contemplated hereby, including the Merger (the “Company Recommendation”) and shall include the Company Recommendation in the Proxy Statement and the Company Board shall not determine not to make or to withdraw, modify or change in any manner adverse to Parent or Acquisition Sub such recommendation or take any other action or make any other public statement in connection with the Special Meeting inconsistent with such recommendation (any of the foregoing, a “Change in Recommendation”); provided that, notwithstanding anything in this Agreement to the contrary, the Company Board may determine (i) to effect a Change in Recommendation and (ii) not to solicit proxies in favor of approval of this Agreement and the transactions contemplated hereby, including the Merger, if (A) the Company has complied in all material respects with its obligations under Section 5.4, (B) the Company Board has determined in good faith, after consultation with the Company’s independent outside legal advisor, that failure to take such action would result in a violation of its fiduciary responsibilities to the Company’s stockholders under Applicable Law and (C) if the Company Board intends to effect a Change in Recommendation following an Acquisition Proposal, (1) the Company Board has concluded in good faith that such Acquisition Proposal constitutes a Superior Proposal, (2) the Company Board has provided five Business Days’ prior written notice (a “Notice of Superior Proposal”) advising Parent that the Company Board intends to take such action and specifying the reasons therefor, including the terms and conditions of the Superior Proposal that is the basis of the proposed action by the Company Board (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Superior Proposal and a new five Business Day period), (3) during such five Business Day period, if requested by Parent, the Company has engaged in and has caused its legal and financial advisors to engage in, good faith negotiations with Parent (to the extent Parent desires to negotiate) to amend this Agreement in such a manner that the Acquisition Proposal which was determined to constitute a Superior Proposal is no longer a Superior Proposal and (4) at the end of such five Business Day period, such Acquisition Proposal has not been withdrawn and continues to constitute a Superior Proposal (taking into account any changes to the terms of this Agreement proposed by Parent in response to a Notice of Superior Proposal, as a result of the negotiations required by clause (3) or otherwise). Notwithstanding any Change in Recommendation, this Agreement shall be submitted to the stockholders of the Company proxies in favor at the Special Meeting for the purpose of adopting this Agreement and nothing contained herein shall be deemed to relieve the Company of such obligation. In addition to the foregoing, the Company shall not submit to the vote of its stockholders at such Special Meeting any Acquisition Proposal other than the Merger.
(b) As promptly as is practicable following the date of this Agreement, the Company shall prepare and file with the SEC a proxy statement relating to the approval of the Merger and shall take all other reasonable action necessary or, in the reasonable opinion of Buyer, advisable to secure any vote of stockholders required by the Georgia Code to effect Company’s stockholders (as amended or supplemented, the Merger“Proxy Statement”). Notwithstanding Parent, Acquisition Sub and the foregoing, if Buyer of Merger Subsidiary or any Company shall cooperate with each other subsidiary of Buyer shall acquire at least 90% in connection with the preparation of the outstanding Shares, and provided that Proxy Statement. The Company will use its reasonable best efforts to have the conditions set forth in Article IX shall have been satisfied or waived, Proxy Statement cleared by the Company shall, at the request of Buyer, take all necessary and appropriate action to cause the Merger to become effective SEC as soon promptly as practicable after such acquisitionfiling.
(c) The Company shall as promptly as practicable notify Parent and Acquisition Sub of the receipt of any oral or written comments from the SEC relating to the Proxy Statement. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s stockholders as promptly as practicable after filing with the SEC. The Company shall cooperate and provide Parent and Acquisition Sub with a reasonable opportunity to review and comment on the draft of the Proxy Statement (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC, without prior to filing such with or sending such to the approval SEC, and the parties hereto will provide each other with copies of all such filings made and correspondence with the SEC. If at any time prior to the Effective Time, any information should be discovered by any party which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by Applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and disseminated by the Company to the stockholders of the Company, in accordance with Section 14-2-1104 of the Georgia Code.
Appears in 1 contract
Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% Subject to the next two sentences of the outstanding Shares, in which case Buyer shall cause the Merger to take place without a vote of the Company's stockholders as permitted by this Section 14-2-1104 of the Georgia Code, if required by applicable law5.2(a), the Company shall cause shall, acting through the Company Board and in accordance with Applicable Law and the Company Certificate of Incorporation and the Company Bylaws, use its commercially reasonable best efforts to duly call, give notice of, convene and hold a special meeting of its stockholders (the "Company Stockholders “Special Meeting"”) to be ---------------------------- duly called and held as soon promptly as reasonably practicable after the purchase of Shares pursuant to the Offer date hereof for the purpose of acting considering and taking action upon proposals to approve this Agreement and all actions contemplated hereby that require the approval of the Company's stockholders. The Board shall (i) recommend to the stockholders of the Company the approval and adoption of this Agreement and the Merger, (ii) include in the Company Proxy Statement such favorable recommendation of the Board that the stockholders of the Company vote in favor of the approval Merger and adoption of this Agreement and the Merger, (iii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company agrees that its obligations set forth in the first sentence of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, of its recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders Meeting, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement relating to the matters to be considered at the Company Stockholders Meeting, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its stockholders as promptly as practicable thereafter.
(b) In connection with the Company Stockholders Meeting, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required. The stockholder vote required for approval of the Merger will be no greater than that set forth in the Georgia Code. Subject to the terms of 6.02(a), the Company shall use its reasonable best efforts to solicit from stockholders of the Company proxies in favor of approval of this Agreement and the transactions contemplated hereby, including the Merger. The Company Board shall recommend that holders of shares of Company Common Stock vote for approval of this Agreement and the transactions contemplated hereby, including the Merger (the “Company Recommendation”); provided, that, notwithstanding anything in this Agreement to the contrary, the Company Board may determine (i) not to make or may withdraw, modify or change in any manner adverse to Parent or Acquisition Sub such recommendation (a “Change in Recommendation”) and shall take all other reasonable action necessary or(ii) not to solicit proxies in favor of approval of this Agreement and the transactions contemplated hereby, including the Merger, if, in the case of both clauses (i) and (ii), the Company Board has determined in good faith, after consultation with its independent legal and financial advisors, that (A) the Company has received a Superior Proposal or (B) it would be consistent with its fiduciary responsibilities to the Company’s stockholders under Applicable Law to so withdraw, modify or change such recommendation (regardless of the existence of a Superior Proposal at such time). The Company may, if it receives an Acquisition Proposal, delay the mailing of the Proxy Statement or the holding of the Special Meeting, in each case for such time as is necessary for the Company Board to consider such Acquisition Proposal and to determine the effect, if any, on its recommendation in favor of the Merger.
(b) Promptly following the date of this Agreement, the Company shall prepare and file with the SEC a proxy statement relating to the approval of the Merger by the Company’s stockholders (as amended or supplemented, the “Proxy Statement”). Parent, Acquisition Sub and the Company shall cooperate with each other in connection with the preparation of the Proxy Statement. The Company will use its commercially reasonable opinion best efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after such filing.
(c) The Company shall as promptly as practicable notify Parent and Acquisition Sub of Buyerthe receipt of any oral or written comments from the SEC relating to the Proxy Statement. Subject to the last two sentences of Section 5.2(a), advisable the Company will use its commercially reasonable best efforts to secure cause the Proxy Statement to be mailed to the Company’s stockholders as promptly as practicable after the Proxy Statement is cleared by the SEC. The Company shall cooperate and provide Parent and Acquisition Sub with a reasonable opportunity to review and comment on the draft of the Proxy Statement (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC, prior to filing such with or sending such to the SEC, and the parties hereto will provide each other with copies of all such filings made and correspondence with the SEC. If at any vote time prior to the Effective Time, any information should be discovered by any party which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of stockholders a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by Applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Georgia Code Company with the SEC and disseminated by the Company to effect the Mergerstockholders of the Company. Notwithstanding the foregoing, if Buyer of Merger Subsidiary or the Company shall not be required to take any other subsidiary of Buyer shall acquire at least 90% of the outstanding Shares, and actions provided that the conditions set forth in Article IX shall have been satisfied for under Section 5.2(b) or waived, this Section 5.2(c) if the Company shallBoard determines in good faith, at after consultation with its independent legal and financial advisors, that (A) the request of Buyer, Company has received a Superior Proposal or (B) it would not be consistent with its fiduciary responsibilities to the Company’s stockholders under Applicable Law to take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without the approval actions (regardless of the stockholders existence of the Company, in accordance with Section 14-2-1104 of the Georgia Codea Superior Proposal at such time).
Appears in 1 contract
Samples: Merger Agreement (Great American Financial Resources Inc)
Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% of the outstanding Shares, in which case Buyer shall cause the Merger to take place without a vote of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Code, if required by applicable law, the Company shall cause a special meeting of its stockholders (the "Company Stockholders Meeting") to be ---------------------------- duly called and held as soon as reasonably practicable after the purchase of Shares pursuant to the Offer for the purpose of acting upon proposals to approve this Agreement and all actions contemplated hereby that require the approval of the Company's stockholders. The Board shall (i) recommend to the stockholders of the Company the approval and adoption of this Agreement and the Merger, (ii) include in the Company Proxy Statement such favorable recommendation of the Board that the stockholders of the Company vote in favor of the approval and adoption of this Agreement and the Merger, (iii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company agrees that its obligations set forth in the first sentence of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, of its recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders Meeting, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement relating to the matters to be considered at the Company Stockholders Meeting, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its stockholders as promptly as practicable thereafter.
(b) In connection with the Company Stockholders Meeting, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required. The stockholder vote required for approval of the Merger will be no greater than that set forth in the Georgia Code. Subject to the terms of 6.02(a), the Company shall use its reasonable best efforts to solicit from stockholders of the Company proxies in favor of the Merger and shall take all other reasonable action necessary or, in the reasonable opinion of Buyer, advisable to secure any vote of stockholders required by the Georgia Code to effect the Merger. Notwithstanding the foregoing, if Buyer of Merger Subsidiary or any other subsidiary of Buyer shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, the Company shall, at the request of Buyer, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without the approval of the stockholders of the Company, in accordance with Section 14-2-1104 of the Georgia Code.
Appears in 1 contract
Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% Subject to the next two sentences of the outstanding Shares, in which case Buyer shall cause the Merger to take place without a vote of the Company's stockholders as permitted by this Section 14-2-1104 of the Georgia Code, if required by applicable law5.2(a), the Company shall cause shall, acting through the Company Board and in accordance with Applicable Law and the Company Certificate of Incorporation and the Company Bylaws, use its commercially reasonable best efforts to duly call, give notice of, convene and hold a special meeting of its stockholders (the "Company Stockholders Special Meeting") to be ---------------------------- duly called and held as soon promptly as reasonably practicable after the purchase of Shares pursuant to the Offer date hereof for the purpose of acting considering and taking action upon proposals to approve this Agreement and all actions contemplated hereby that require the approval of the Company's stockholders. The Board shall (i) recommend to the stockholders of the Company the approval and adoption of this Agreement and the Merger, (ii) include in the Company Proxy Statement such favorable recommendation of the Board that the stockholders of the Company vote in favor of the approval Merger and adoption of this Agreement and the Merger, (iii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company agrees that its obligations set forth in the first sentence of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, of its recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders Meeting, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement relating to the matters to be considered at the Company Stockholders Meeting, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its stockholders as promptly as practicable thereafter.
(b) In connection with the Company Stockholders Meeting, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required. The stockholder vote required for approval of the Merger will be no greater than that set forth in the Georgia Code. Subject to the terms of 6.02(a), the Company shall use its reasonable best efforts to solicit from stockholders of the Company proxies in favor of approval of this Agreement and the transactions contemplated hereby, including the Merger. The Company Board shall recommend that holders of shares of Company Common Stock vote for approval of this Agreement and the transactions contemplated hereby, including the Merger (the "Company Recommendation"); provided, that, notwithstanding anything in this Agreement to the contrary, the Company Board may determine (i) not to make or may withdraw, modify or change in any manner adverse to Parent or Acquisition Sub such recommendation (a "Change in Recommendation") and shall take all other reasonable action necessary or(ii) not to solicit proxies in favor of approval of this Agreement and the transactions contemplated hereby, including the Merger, if, in the case of both clauses (i) and (ii), the Company Board has determined in good faith, after consultation with its independent legal and financial advisors, that (A) the Company has received a Superior Proposal or (B) it would be consistent with its fiduciary responsibilities to the Company's stockholders under Applicable Law to so withdraw, modify or change such recommendation (regardless of the existence of a Superior Proposal at such time). The Company may, if it receives an Acquisition Proposal, delay the mailing of the Proxy Statement or the holding of the Special Meeting, in each case for such time as is necessary for the Company Board to consider such Acquisition Proposal and to determine the effect, if any, on its recommendation in favor of the Merger.
(b) Promptly following the date of this Agreement, the Company shall prepare and file with the SEC a proxy statement relating to the approval of the Merger by the Company's stockholders (as amended or supplemented, the "Proxy Statement"). Parent, Acquisition Sub and the Company shall cooperate with each other in connection with the preparation of the Proxy Statement. The Company will use its commercially reasonable opinion best efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after such filing.
(c) The Company shall as promptly as practicable notify Parent and Acquisition Sub of Buyerthe receipt of any oral or written comments from the SEC relating to the Proxy Statement. Subject to the last two sentences of Section 5.2(a), advisable the Company will use its commercially reasonable best efforts to secure cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after the Proxy Statement is cleared by the SEC. The Company shall cooperate and provide Parent and Acquisition Sub with a reasonable opportunity to review and comment on the draft of the Proxy Statement (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC, prior to filing such with or sending such to the SEC, and the parties hereto will provide each other with copies of all such filings made and correspondence with the SEC. If at any vote time prior to the Effective Time, any information should be discovered by any party which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of stockholders a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by Applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Georgia Code Company with the SEC and disseminated by the Company to effect the Mergerstockholders of the Company. Notwithstanding the foregoing, if Buyer of Merger Subsidiary or the Company shall not be required to take any other subsidiary of Buyer shall acquire at least 90% of the outstanding Shares, and actions provided that the conditions set forth in Article IX shall have been satisfied for under Section 5.2(b) or waived, this Section 5.2(c) if the Company shallBoard determines in good faith, at after consultation with its independent legal and financial advisors, that (A) the request of Buyer, Company has received a Superior Proposal or (B) it would not be consistent with its fiduciary responsibilities to the Company's stockholders under Applicable Law to take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without the approval actions (regardless of the stockholders existence of the Company, in accordance with Section 14-2-1104 of the Georgia Codea Superior Proposal at such time).
Appears in 1 contract
Samples: Merger Agreement (Ceres Group Inc)
Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% of the outstanding Shares, in which case Buyer shall cause the Merger Subject to take place without a vote of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Code, if required by applicable law2.03 hereto, the Company shall cause a special meeting of its stockholders (the "Company Stockholders Meeting") to be ---------------------------- duly called and held as soon as reasonably practicable after the purchase execution of Shares pursuant to the Offer this Agreement for the purpose of acting upon proposals to approve voting on the approval of this Agreement and all actions contemplated hereby that require the approval Merger. Subject to the applicable provisions of Sections 2.03(b), 5.01(e) and 7.05 hereof, the Board of Directors of the Company's stockholders. The Board Company shall (i) recommend to the stockholders of the Company in the Proxy Statement (as hereinafter defined) that they vote in favor of approval and adoption of this Agreement and the Merger, (ii) include in and the Company Proxy Statement shall solicit proxies in connection with such favorable recommendation of the Board that the stockholders of the Company vote meeting in favor of the such approval and adoption of this Agreement and the Merger, (iii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company agrees that its obligations set forth in the first sentence of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, of its recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders Meeting, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement relating to the matters to be considered at the Company Stockholders Meeting, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its stockholders as promptly as practicable thereafter.
(b) In connection with the Company Stockholders Meeting, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required. The stockholder vote required for approval of the Merger will be no greater than that set forth in the Georgia Code. Subject to the terms of 6.02(a), the Company shall otherwise use its commercially reasonable best efforts to solicit from stockholders of the Company proxies in favor of the Merger and shall take all other reasonable action necessary or, in the reasonable opinion of Buyer, advisable to secure any vote of stockholders required by the Georgia Code to effect the Merger. Notwithstanding the foregoing, if Buyer of Merger Subsidiary or any other subsidiary of Buyer shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, the Company shall, at the request of Buyer, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without the approval of the stockholders of the Company required to effect the Merger under applicable law. Simultaneously with the execution of this Agreement, Sxxxxx X. Xxxxx has entered into a Voting Agreement dated the date hereof (the “Voting Agreement”) with Buyer, pursuant to which, among other agreements, he has granted to Cxxxxxx X. Xxxxxxx and Axxxxx X. Xxxx, with full power of substitution, an irrevocable proxy (the “Irrevocable Proxy”) to vote all shares of Company Common Stock held of record by such stockholder (or over which such stockholder has voting power, by contract or otherwise) to approve this Agreement and the Merger.
(b) The Company will prepare, and file with the Securities and Exchange Commission (the “SEC”), a proxy statement (such proxy statement, together with any amendments thereof or supplements thereto, being herein called the “Proxy Statement”), together with a form of proxy, with respect to the stockholders meeting described in Section 2.02(a) hereof as soon as reasonably practicable after the execution of this Agreement and in any event not later than twenty days following the date hereof. The Company (i) shall use its commercially reasonable efforts to have the Proxy Statement cleared by the SEC as soon as reasonably practicable, if such clearance is required, (ii) shall as soon as reasonably practicable thereafter mail the Proxy Statement to the stockholders of the Company, and (iii) shall otherwise comply in accordance all material respects with Section 14-2-1104 all applicable legal requirements in respect of such meeting. The Company shall notify Buyer promptly of the Georgia Codereceipt of any comments from the SEC or its staff and any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Buyer with copies of all correspondence between the Company and its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement or the Merger. Prior to filing the Proxy Statement with the SEC, the Company shall provide reasonable opportunity for Buyer to review and comment upon the contents of the Proxy Statement and shall not include therein any information to which counsel to Buyer shall reasonably object or omit therefrom any information which counsel to Buyer shall reasonably request (unless, in the case of such inclusion or omission, counsel to the Company shall reasonably determine that such information should be included or omitted consistent with applicable legal principles). The Buyer will provide the Company with any information that may be required in order to effectuate the preparation and filing of the Proxy Statement pursuant to this Section 2.02. If at any time prior to the meeting of the stockholders of the Company contemplated by Section 2.02(a) hereof, any event relating to the Company or any of its subsidiaries, officers or directors is discovered by the Company which should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly so inform Buyer.
(c) Subject to the applicable provisions of Sections 2.03, 5.01 and 7.05 hereof, the Board of Directors of the Company shall not withdraw or qualify, or propose to withdraw or qualify, the approval or recommendation by the Board of Directors of the Company of this Agreement or the Merger. Nothing contained in this Section 2.02(c) shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Appears in 1 contract
Samples: Merger Agreement (Fair Isaac Corp)
Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% Subject to the next two sentences of this Section 6.2(a), GAFRI shall, acting through the outstanding SharesGAFRI Board and in accordance with Applicable Law and the GAFRI Certificate of Incorporation and the GAFRI Bylaws, in which case Buyer shall cause the Merger to take place without a vote of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Codeduly call, if required by applicable lawgive notice of, the Company shall cause convene and hold a special meeting of its stockholders (the "Company Stockholders “Special Meeting"”) to be ---------------------------- duly called and held as soon promptly as reasonably practicable after the purchase of Shares pursuant to the Offer date hereof for the purpose of acting considering and taking action upon proposals to approve this Agreement and all actions contemplated hereby that require the Merger and shall use reasonable efforts to solicit proxies in favor of approval of the Company's stockholders. The Board shall (i) recommend to the stockholders of the Company the approval and adoption of this Agreement and the Merger, (ii) include in the Company Proxy Statement such favorable recommendation of the Board that the stockholders of the Company vote in favor of the approval and adoption of this Agreement and the Merger, (iii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company agrees GAFRI Board and its Special Committee shall recommend that its obligations set forth in the first sentence holders of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, shares of its recommendation GAFRI Common Stock vote to the Company's stockholders that such stockholders approve and adopt this Agreement and to approve the Merger. In connection with ; provided, however, that, notwithstanding anything in this Agreement to the Company Stockholders Meetingcontrary, the Company GAFRI Board or its Special Committee may determine (i) not to make or may withdraw, modify or change in any manner adverse to Parent or GAC such recommendation (a “Change in Recommendation”) and (ii) not to solicit proxies in favor of approval of this Agreement , Merger and the Transactions.
(b) As promptly as practicable following the execution of this Agreement, GAFRI shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement proxy statement relating to the matters approval of the Merger by GAFRI’s stockholders (as amended or supplemented, the “Proxy Statement”). Parent, GAC and GAFRI shall cooperate with each other in connection with the preparation of the Proxy Statement. GAFRI will use commercially reasonable efforts to be considered at have the Company Stockholders Meeting, respond Proxy Statement cleared by the SEC as promptly as practicable to after such filing.
(c) GAFRI shall as promptly as practicable notify Parent and GAC of the receipt of any oral or written comments made by from the SEC with respect relating to the preliminary Company Proxy Statement and Statement. Subject to the last two sentences of Section 6.2(a), GAFRI will use its commercially reasonable best efforts to cause a definitive Company the Proxy Statement to be mailed to its GAFRI’s stockholders as promptly as practicable thereafter.
after the Proxy Statement is cleared by the SEC. GAFRI shall cooperate and provide Parent and GAC with a reasonable opportunity to review and comment on the draft of the Proxy Statement (bincluding each amendment or supplement thereto) In connection and all responses to requests for additional information by and replies to comments of the SEC, prior to filing such with or sending such to the SEC, and the parties hereto will provide each other with copies of all such filings made and correspondence with the Company Stockholders MeetingSEC. If at any time prior to the Effective Time, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required. The stockholder vote required for approval of the Merger will any information should be no greater than that discovered by any party which should be set forth in the Georgia Code. Subject an amendment or supplement to the terms Proxy Statement so that the Proxy Statement would not include any misstatement of 6.02(a)a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company party which discovers such information shall use its reasonable best efforts promptly notify the other parties hereto and, to solicit from stockholders of the Company proxies in favor of the Merger and shall take all other reasonable action necessary or, in the reasonable opinion of Buyer, advisable to secure any vote of stockholders extent required by Applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by GAFRI with the Georgia Code SEC and disseminated by GAFRI to effect the Merger. Notwithstanding the foregoing, if Buyer of Merger Subsidiary or any other subsidiary of Buyer shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, the Company shall, at the request of Buyer, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without the approval of the stockholders of the Company, in accordance with Section 14-2-1104 of the Georgia CodeGAFRI.
Appears in 1 contract
Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% of the outstanding Shares, in which case Buyer shall cause the Merger to take place without a vote of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Code, if required by applicable law, the The Company shall cause a special meeting of its stockholders (the "Company Stockholders Meeting") to be ---------------------------- duly called and held as soon as reasonably practicable after the purchase execution of Shares pursuant to the Offer this Agreement for the purpose of acting upon proposals to approve voting on the approval of this Agreement and all actions contemplated hereby that require the approval Merger. Subject to the applicable provisions of Sections 2.03(b), 5.01 and 8.04 hereof, the Board of Directors of the Company's stockholders. The Board Company shall (i) recommend to the stockholders of the Company in the Proxy Statement (as hereinafter defined) that they vote in favor of approval and adoption of this Agreement and the Merger, (ii) include in and the Company Proxy Statement shall solicit proxies in connection with such favorable recommendation meeting in favor of such approval, shall engage a nationally recognized proxy solicitor reasonably acceptable to Buyer to solicit such proxies, and shall otherwise use its reasonable best efforts to secure the Board that approval of the stockholders of the Company required to effect the Merger under applicable law. Simultaneously with the execution of this Agreement, GSCP Recovery, Inc. has entered into a Voting Agreement dated the date hereof (the "Voting Agreement") with Buyer, pursuant to which, among other agreements, it has granted to Danixx Xxxxxxx xxx Jamex Xxxxxxxxxxx, xxth full power of substitution, an irrevocable proxy (the "Irrevocable Proxy") to vote in favor all shares of the approval and adoption Company Common Stock held of record by such stockholder (or over which such stockholder has voting power, by contract or otherwise) to approve this Agreement and the Merger, (iii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company agrees that its obligations set forth in the first sentence of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, of its recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders Meeting, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement relating has been earlier terminated pursuant to the matters to be considered at the Company Stockholders Meeting, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its stockholders as promptly as practicable thereafterSection 5.01 hereof.
(b) In connection The Company will prepare, and file with the Company Stockholders MeetingSecurities and Exchange Commission (the "SEC"), a proxy statement, together with a form of proxy, with respect to the Company shall promptly take all action necessary stockholders meeting described in accordance Section 2.02(a) as soon as reasonably practicable after the execution of this Agreement (such proxy statement, together with any amendments thereof or supplements thereto, being herein called the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required"Proxy Statement"). The stockholder vote required for approval of the Merger will be no greater than that set forth in the Georgia Code. Subject to the terms of 6.02(a), the Company (i) shall use its reasonable best efforts to solicit from stockholders of have the Company proxies in favor of the Merger and shall take all other reasonable action necessary or, in the reasonable opinion of Buyer, advisable to secure any vote of stockholders required Proxy Statement cleared by the Georgia Code to effect the Merger. Notwithstanding the foregoing, if Buyer of Merger Subsidiary or any other subsidiary of Buyer shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, the Company shall, at the request of Buyer, take all necessary and appropriate action to cause the Merger to become effective SEC as soon as practicable after such acquisition, without the approval of the stockholders of the Company, in accordance with Section 14-2-1104 of the Georgia Code.reasonably
Appears in 1 contract
Samples: Merger Agreement (Purina Mills Inc/)
Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% Subject to the next two sentences of this Section 5.2(a), the outstanding SharesCompany shall, acting through the Company Board and in which case Buyer shall cause accordance with applicable law and the Merger to take place without a vote Certificate of Incorporation and the by-laws of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Code, if required by applicable lawduly call, the Company shall cause give notice of, convene and hold a special meeting of its stockholders (the "Company Stockholders “Special Meeting"”) to be ---------------------------- duly called and held as soon promptly as reasonably practicable after the purchase of Shares pursuant to the Offer date hereof for the purpose of acting considering and taking action upon proposals to approve this Agreement and all actions contemplated hereby that require the Merger and shall solicit proxies in favor of approval of the Company's stockholders. The Board shall (i) recommend to the stockholders of the Company the approval and adoption of this Agreement and the Merger. The Company Board shall recommend approval of the Agreement and the Merger by the Company’s stockholders (the “Company Recommendation”); provided that, notwithstanding anything in this Agreement to the contrary, the Company Board may determine (i) not to make or may withdraw, modify or change such recommendation (a “Change in Recommendation”), and (ii) include in the Company Proxy Statement such favorable recommendation of the Board that the stockholders of the Company vote not to solicit proxies in favor of the approval and adoption of this Agreement and the MergerMerger if, in the case of both clauses (iiii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendationii), the Special Committee has determined in each case, unless the Boardgood faith, after consultation with its independent outside legal counseland financial advisors, determines in good faith that failing failure to take such action is necessary for could reasonably be considered to be, or expected to result in, a breach of the Board to comply with its Company Board’s fiduciary duties to the Company's stockholders under applicable law. The Company agrees that may, if it receives a written bona fide unsolicited Acquisition Proposal (as defined in Section 5.4(b) hereof), delay the mailing of the Proxy Statement or the holding of the Special Meeting, in each case for such time as is necessary for the Company Board to consider such Acquisition Proposal and to determine the effect, if any, on its obligations set forth recommendation in favor of the first sentence Merger.
(b) Promptly following the date of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, of its recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders MeetingAgreement, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement proxy statement relating to the matters to be considered at approval of the Merger by the Company’s stockholders (as amended or supplemented, the “Proxy Statement”), and the parties hereto shall prepare a Schedule 13E-3 filing (as amended or supplemented, the “Schedule 13E-3”). Parent, Holding Corp., Acquisition Sub and the Company Stockholders Meetingshall cooperate with each other in connection with the preparation of the foregoing documents. The Company will use its commercially reasonable efforts to have the Proxy Statement, respond and the parties hereto will use their commercially reasonable efforts to have the Schedule 13E-3, cleared by the SEC as promptly as practicable to after such filing.
(c) The Company shall as promptly as practicable notify Parent and Acquisition Sub of the receipt of any oral or written comments made by from the SEC with respect relating to the preliminary Proxy Statement. Subject to the last sentence of Section 5.2(a), the Company Proxy Statement and will use its commercially reasonable efforts to cause a definitive Company the Proxy Statement to be mailed to its the Company’s stockholders as promptly as practicable thereafter.
after the Proxy Statement is cleared by the SEC. The Company shall cooperate and provide Parent and Acquisition Sub with a reasonable opportunity to review and comment on the draft of the Proxy Statement (bincluding each amendment or supplement thereto), and the parties hereto shall cooperate and provide each other with a reasonable opportunity to review and comment on the draft Schedule 13E-3 (including each amendment or supplement thereto) In connection and all responses to requests for additional information by and replies to comments of the SEC, prior to filing such with or sending such to the SEC, and the parties hereto will provide each other with copies of all such filings made and correspondence with the Company Stockholders MeetingSEC. If at any time prior to the Effective Time, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required. The stockholder vote required for approval of the Merger will any information should be no greater than that discovered by any party which should be set forth in the Georgia Code. Subject an amendment or supplement to the terms Proxy Statement or the Schedule 13E-3 so that the Proxy Statement or the Schedule 13E-3 would not include any misstatement of 6.02(a), a material fact or omit to state any material fact required to be stated therein or necessary to make the Company shall use its reasonable best efforts to solicit from stockholders of the Company proxies in favor of the Merger and shall take all other reasonable action necessary orstatements therein, in the reasonable opinion light of Buyerthe circumstances under which they were made, advisable not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to secure any vote of stockholders the extent required by the Georgia Code to effect the Merger. Notwithstanding the foregoingapplicable law, if Buyer of Merger Subsidiary an appropriate amendment or any other subsidiary of Buyer supplement describing such information shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, be promptly filed by the Company shall, at with the request of Buyer, take all necessary SEC and appropriate action disseminated by the Company to cause the Merger to become effective as soon as practicable after such acquisition, without the approval of the stockholders of the Company, in accordance with Section 14-2-1104 of the Georgia Code.
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Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% of the outstanding Shares, in which case Buyer shall cause the Merger to take place without a vote of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Code, if required by applicable law, the The Company shall cause (i) duly take all lawful action to call, give notice of, convene and hold a special meeting of its stockholders (the "Company Stockholders Meeting") to be ---------------------------- duly called and held on a date as soon as reasonably practicable after the purchase of Shares pursuant to Proxy Statement is cleared by the Offer SEC (the “Company Stockholders Meeting”) for the purpose of acting upon proposals to approve this Agreement and all actions contemplated hereby that require obtaining the approval of the Company's stockholders. The Board shall (i) recommend Company Stockholder Approval with respect to the stockholders of the Company the approval and adoption of this Agreement and the Merger, Charter Amendment and (ii) include in shall use all reasonable efforts to solicit the Company Proxy Statement such favorable recommendation of the Board that the stockholders of the Company vote in favor of the approval and adoption of this Agreement and the MergerCharter Amendment by the Company Stockholder Approval; provided, that in the event of a Change in the Company Recommendation pursuant to Section 5.07(c), notwithstanding clause (ii) of this Section 1.09(a), (iiix) take the Company may disclose the fact of such Change in the Company Recommendation in any solicitation made by the Company to its stockholders and (y) the Company shall use all lawful action reasonably required reasonable efforts to solicit such approval from the votes of the stockholders of the Company in respect of the matters to be brought before such meeting, but shall not be required to solicit in favor of the Company Stockholder Approval. The Board of Directors of the Company shall recommend adoption of the Charter Amendment and (iv) not withdraw or modify such favorable recommendation, in each case, unless this Agreement by the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for stockholders of the Board to comply with its fiduciary duties Company to the Company's stockholders under applicable law. The Company agrees that its obligations effect as set forth in Section 3.03(b) (the first sentence of this Section 6.02(a) “Company Recommendation”), and shall not be affected by the withdrawal withdraw, modify or --------------- modification by the Boardqualify (or propose to withdraw, modify or qualify) in accordance with the immediately preceding sentence, of its any manner adverse to Parent such recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In or take any action or make any statement in connection with the Company Stockholders MeetingMeeting inconsistent with such recommendation including, without limitation, approving or recommending or proposing to approve or recommend a third party Takeover Proposal with respect to the Company or failing to recommend the adoption of this Agreement (collectively, a “Change in the Company Recommendation”); provided that the Board of Directors of the Company and/or the Special Committee may make a Change in the Company Recommendation pursuant to Section 5.07(c) hereof; and provided, further, that the provision of factual information by the Company to its stockholders shall not be deemed to constitute a Change in the Company Recommendation so long as the disclosure through which such factual information is conveyed, taken as a whole, is not inconsistent with the Company Recommendation.
(b) As promptly as practicable following the date of this Agreement, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement proxy statement relating to the matters to be considered at approval of the Merger by the Company’s stockholders (as amended or supplemented, the “Proxy Statement”), and the Parties shall prepare a Schedule 13E-3 filing (as amended or supplemented, the “Schedule 13E-3”). Parent and the Company Stockholders Meetingshall cooperate with each other in connection with the preparation of the foregoing documents. The Company will use all reasonable efforts to have the Proxy Statement, respond and the Parties will use all reasonable efforts to have the Schedule 13E-3, cleared by the SEC as promptly as practicable after such filing.
(c) The Company will use all reasonable efforts to any comments made by cause the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its the Company’s stockholders as promptly as practicable thereafter.
after the Proxy Statement is cleared by the SEC. The Company shall as promptly as practicable notify Parent of the receipt of any oral or written comments from the SEC relating to the Proxy Statement. The Company shall cooperate and provide Parent with a reasonable opportunity to review and comment on the draft of the Proxy Statement (bincluding each amendment or supplement thereto), and the Parties hereto shall cooperate and provide each other with a reasonable opportunity to review and comment on the draft Schedule 13E-3 (including each amendment or supplement thereto) In connection and all responses to requests for additional information by and replies to comments of the SEC, prior to filing such with or sending such to the SEC, and the Parties hereto will provide each other with copies of all such filings made and correspondence with the Company Stockholders MeetingSEC. If at any time prior to the Effective Time, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required. The stockholder vote required for approval of the Merger will any information should be no greater than that discovered by any Party which should be set forth in the Georgia Code. Subject an amendment or supplement to the terms Proxy Statement or the Schedule 13E-3 so that the Proxy Statement or the Schedule 13E-3 would not include any misstatement of 6.02(a), a material fact or omit to state any material fact required to be stated therein or necessary to make the Company shall use its reasonable best efforts to solicit from stockholders of the Company proxies in favor of the Merger and shall take all other reasonable action necessary orstatements therein, in the reasonable opinion light of Buyerthe circumstances under which they were made, advisable not misleading, the Party which discovers such information shall promptly notify the other Parties hereto and, to secure any vote of stockholders the extent required by the Georgia Code to effect the Merger. Notwithstanding the foregoingapplicable Law, if Buyer of Merger Subsidiary an appropriate amendment or any other subsidiary of Buyer supplement describing such information shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, be promptly filed by the Company shall, at with the request of Buyer, take all necessary SEC and appropriate action disseminated by the Company to cause the Merger to become effective as soon as practicable after such acquisition, without the approval of the stockholders of the Company, in accordance with Section 14-2-1104 of the Georgia Code.. ARTICLE II
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Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% of the outstanding Shares, in which case Buyer shall cause the Merger to take place without a vote of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Code, if required by applicable law, the The Company shall cause a special meeting of its stockholders (the "Company Stockholders Meeting") to be ---------------------------- duly called and held as soon as reasonably practicable after the purchase execution of Shares pursuant to the Offer this Agreement for the purpose of acting upon proposals to approve voting on the adoption of this Agreement. The Board of Directors of the Company shall recommend approval and adoption of this Agreement and all actions contemplated hereby that require the approval of by the Company's stockholders. The Board Company shall (iuse its best efforts consistent with applicable legal requirements to solicit proxies in connection with a meeting of stockholders called pursuant to this Section 2.02(a) recommend to the stockholders and shall solicit such proxies in favor of the Company the such approval and adoption of this Agreement and the Merger, (ii) include in the Company Proxy Statement such favorable recommendation of the Board that the stockholders of the Company vote in favor of the approval and adoption of this Agreement and the Merger, (iii) take all lawful other action reasonably necessary to attempt to secure the stockholder approval required to solicit such approval from effect the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders Merger under applicable law. The Company agrees that its obligations set forth in Simultaneously with the first sentence execution of this Section 6.02(aAgreement, each of Xxxx X. Xxxx and Xxxxxx X. Xxxx have entered into a Voting Agreement dated the date hereof with Buyer, pursuant to which they have granted to Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxxxxx, with full power of substitution, an irrevocable proxy (collectively the "Irrevocable Proxies") shall not be affected to vote all shares of Company Common Stock held of record by the withdrawal such stockholder (or --------------- modification over which such stockholder has voting power, by the Board, in accordance with the immediately preceding sentence, of its recommendation contract or otherwise) to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders Meeting, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement relating to the matters to be considered at the Company Stockholders Meeting, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its stockholders as promptly as practicable thereafter.
(b) In connection The Company will prepare, and file with the Securities and Exchange Commission (the "SEC"), a proxy statement, together with a form of proxy, with respect to the stockholders meeting described in Section 2.02(a) (such proxy statement, together with any amendments thereof or supplements thereto, being herein called the "Proxy Statement"). The Company Stockholders Meeting(i) will use its best efforts to have the Proxy Statement cleared by the SEC as soon as reasonably practicable, if such clearance is required, (ii) will as soon as reasonably practicable thereafter mail the Proxy Statement to stockholders of the Company and (iii) will otherwise comply in all material respects with all applicable legal requirements in respect of such meeting. The Company shall notify Buyer promptly of the receipt of any comments from the SEC or its staff and any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Buyer with copies of all correspondence between the Company and its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement or the Merger. Prior to filing the Proxy Statement with the SEC, the Company shall provide reasonable opportunity for Buyer to review and comment upon the contents of the Proxy Statement and shall not include therein any information to which counsel to Buyer shall reasonably object (unless counsel to the Company shall reasonably determine that such information should be included consistent with applicable legal principles) or omit therefrom any information which counsel to Buyer shall reasonably request. If at any time prior to the meeting of the stockholders of the Company contemplated by this Section 2.02, any event relating to the Company or any of its subsidiaries, officers or directors is discovered by the Company which should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is requiredso inform Buyer. The stockholder vote required for approval Proxy Statement shall contain the recommendation of the Merger will be no greater than that set forth in the Georgia Code. Subject to the terms Board of 6.02(a), the Company shall use its reasonable best efforts to solicit from stockholders Directors of the Company proxies and the Special Committee in favor of the Merger and shall take all other reasonable action necessary or, in the reasonable opinion of Buyer, advisable to secure any vote of stockholders required by the Georgia Code to effect the Merger. Notwithstanding the foregoing, if Buyer of Merger Subsidiary or any other subsidiary of Buyer shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, the Company shall, at the request of Buyer, take all necessary stockholders vote for and appropriate action to cause adopt the Merger to become effective as soon as practicable after such acquisition, without the approval of the stockholders of the Company, in accordance with Section 14-2-1104 of the Georgia Codeand this Agreement.
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Stockholders’ Meeting; Proxy Material. (a) Unless Buyer or Merger Subsidiary acquires at least 90% of the outstanding Shares, in which case Buyer shall cause the Merger Subject to take place without a vote of the Company's stockholders as permitted by Section 14-2-1104 of the Georgia Code, if required by applicable law2.03 hereto, the Company shall cause a special meeting of its stockholders (the "Company Stockholders Meeting") to be ---------------------------- duly called and held as soon as reasonably practicable after the purchase execution of Shares pursuant to the Offer this Agreement for the purpose of acting upon proposals to approve voting on the approval of this Agreement and all actions contemplated hereby that require the approval Merger. Subject to the applicable provisions of Sections 2.03(b), 5.01(e) and 7.05 hereof, the Board of Directors of the Company's stockholders. The Board Company shall (i) recommend to the stockholders of the Company in the Proxy Statement (as hereinafter defined) that they vote in favor of approval and adoption of this Agreement and the Merger, (ii) include in and the Company Proxy Statement shall solicit proxies in connection with such favorable recommendation of the Board that the stockholders of the Company vote meeting in favor of the such approval and adoption of this Agreement and the Merger, (iii) take all lawful action reasonably required to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, in each case, unless the Board, after consultation with independent outside legal counsel, determines in good faith that failing to take such action is necessary for the Board to comply with its fiduciary duties to the Company's stockholders under applicable law. The Company agrees that its obligations set forth in the first sentence of this Section 6.02(a) shall not be affected by the withdrawal or --------------- modification by the Board, in accordance with the immediately preceding sentence, of its recommendation to the Company's stockholders that such stockholders approve and adopt this Agreement and the Merger. In connection with the Company Stockholders Meeting, the Company shall in accordance with applicable law and after consultation with the Buyer, prepare and file with the SEC a preliminary Company Proxy Statement relating to the matters to be considered at the Company Stockholders Meeting, respond as promptly as practicable to any comments made by the SEC with respect to the preliminary Company Proxy Statement and cause a definitive Company Proxy Statement to be mailed to its stockholders as promptly as practicable thereafter.
(b) In connection with the Company Stockholders Meeting, the Company shall promptly take all action necessary in accordance with the Georgia Code and its Articles of Incorporation and Bylaws to convene the Company Stockholders Meeting, if such meeting is required. The stockholder vote required for approval of the Merger will be no greater than that set forth in the Georgia Code. Subject to the terms of 6.02(a), the Company shall otherwise use its commercially reasonable best efforts to solicit from stockholders of the Company proxies in favor of the Merger and shall take all other reasonable action necessary or, in the reasonable opinion of Buyer, advisable to secure any vote of stockholders required by the Georgia Code to effect the Merger. Notwithstanding the foregoing, if Buyer of Merger Subsidiary or any other subsidiary of Buyer shall acquire at least 90% of the outstanding Shares, and provided that the conditions set forth in Article IX shall have been satisfied or waived, the Company shall, at the request of Buyer, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without the approval of the stockholders of the Company required to effect the Merger under applicable law. Simultaneously with the execution of this Agreement, Xxxxxx X. Xxxxx has entered into a Voting Agreement dated the date hereof (the "Voting Agreement") with Buyer, pursuant to which, among other agreements, he has granted to Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxx, with full power of substitution, an irrevocable proxy (the "Irrevocable Proxy") to vote all shares of Company Common Stock held of record by such stockholder (or over which such stockholder has voting power, by contract or otherwise) to approve this Agreement and the Merger.
(b) The Company will prepare, and file with the Securities and Exchange Commission (the "SEC"), a proxy statement (such proxy statement, together with any amendments thereof or supplements thereto, being herein called the "Proxy Statement"), together with a form of proxy, with respect to the stockholders meeting described in Section 2.02(a) hereof as soon as reasonably practicable after the execution of this Agreement and in any event not later than twenty days following the date hereof. The Company (i) shall use its commercially reasonable efforts to have the Proxy Statement cleared by the SEC as soon as reasonably practicable, if such clearance is required, (ii) shall as soon as reasonably practicable thereafter mail the Proxy Statement to the stockholders of the Company, and (iii) shall otherwise comply in accordance all material respects with Section 14-2-1104 all applicable legal requirements in respect of such meeting. The Company shall notify Buyer promptly of the Georgia Codereceipt of any comments from the SEC or its staff and any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Buyer with copies of all correspondence between the Company and its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement or the Merger. Prior to filing the Proxy Statement with the SEC, the Company shall provide reasonable opportunity for Buyer to review and comment upon the contents of the Proxy Statement and shall not include therein any information to which counsel to Buyer shall reasonably object or omit therefrom any information which counsel to Buyer shall reasonably request (unless, in the case of such inclusion or omission, counsel to the Company shall reasonably determine that such information should be included or omitted consistent with applicable legal principles). The Buyer will provide the Company with any information that may be required in order to effectuate the preparation and filing of the Proxy Statement pursuant to this Section 2.02. If at any time prior to the meeting of the stockholders of the Company contemplated by Section 2.02(a) hereof, any event relating to the Company or any of its subsidiaries, officers or directors is discovered by the Company which should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly so inform Buyer.
(c) Subject to the applicable provisions of Sections 2.03, 5.01 and 7.05 hereof, the Board of Directors of the Company shall not withdraw or qualify, or propose to withdraw or qualify, the approval or recommendation by the Board of Directors of the Company of this Agreement or the Merger. Nothing contained in this Section 2.02(c) shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
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